                                 NO. 12-09-00156-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

CARL LEONARD LIVELY,                           §              APPEAL FROM THE 7TH
APPELLANT

V.                                             §              JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                       §              SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
       A jury found Appellant, Carl Leonard Lively, guilty of aggravated robbery. The trial
court assessed a life sentence to be served consecutively to a Henderson County conviction. In
his first issue, Appellant complains the trial court erred in allowing the admission of evidence of
extraneous offenses.    In his second issue, he contends the prosecutor made impermissible
arguments to the jury that emphasized the evidence of extraneous offenses improperly admitted.
We affirm.


                                           BACKGROUND
       At around 5:00 p.m. on May 30, 2007, a man walked into the Dollar General Store in
Bullard and asked Tiffany Stokes, the cashier, about buying cell phone minutes. She went to the
cash register, but while she was completing the sale, the man pointed a pistol at her. The man
said, “[O]pen it, open it, and just be quiet.” He held the gun at his waist level but pointed it up at
her. She gave him all the money in the cash register. The robber then told her to turn around
and walk to the back of the store. He ordered her not to turn around or try to see what he was
driving or he would shoot her.
       Stokes described the robber as a slender white male with a mustache. He wore a dark
long sleeved shirt, dark pants, work boots, sunglasses, a dark handkerchief around his neck, and
a blue or black baseball cap with white lettering on it. She noticed that he had gray hair sticking
out from under his baseball cap. Five months later, Stokes quickly identified Appellant in a
photo lineup.
       Jordan Goodman testified that he left the Dollar General Store at about the same time as
the robber entered. He testified that when he left the store, the only vehicle in the parking lot,
other than his own, was a dark blue Tahoe.
       Allen In testified that at 4:45 p.m. on July 19, 2007, a thin, white male walked into his
liquor store in Marshall, Texas, pointed a pistol at him, and told him to empty the cash register.
The robber held the gun around his mid-section with the barrel pointing up at In. After he took
the money, he told In to walk to the back of the store. Immediately after the robber left the
building, In grabbed his .40 caliber Hi-Point pistol from under the counter. He ran outside in
time to see the robber still in the parking lot in a dark blue Tahoe. In fired four shots at the
Tahoe as it sped away. He said the robber wore a baseball cap, and that he could see the robber
had gray hair.
       On October 30, 2007, Gun Barrel City officers arrested Appellant following the
investigation of a traffic accident involving Appellant. His dark blue Tahoe was impounded.
The officers found two bullet holes in the vehicle’s exterior. They recovered a spent bullet from
its interior. Testing established that it had been fired from In’s .40 caliber pistol.
       At trial, both Stokes and In identified Appellant as the person who robbed them.


                                      EXTRANEOUS OFFENSES
       In his first issue, Appellant contends the trial court erred in admitting evidence of the
Marshall liquor store robbery, events surrounding his arrest at Gun Barrel City, and mail
indicating that Appellant had written checks that had not been paid. Appellant argues that,
despite the trial court’s limiting instructions, the evidence gave the jury the impression that he
had committed multiple robberies. He also insists that, even if the challenged evidence had some
purpose other than proof of character and that the charged conduct conformed to that character,
its probative value was substantially outweighed by the danger of unfair prejudice from its
admission.
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Standard of Review
       The trial court’s evidentiary rulings are reviewed for abuse of discretion. Sauceda v.
State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). If the ruling was correct on any theory of
law applicable to the case, in light of what was before the trial court at the time the ruling was
made, the ruling must be upheld. Id. Appellate courts will uphold a trial court’s ruling on the
admissibility of evidence as long as the trial court’s ruling was at least within the “zone of
reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)
(op. on reh’g).
Applicable Law
       “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.” TEX. R. EVID. 404(b). However,
evidence of other crimes, wrongs, or acts may be admissible for other purposes, such as proof of
identity. Id. An extraneous offense may be admissible to show identity only when identity is at
issue. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). When an extraneous offense
is offered to prove identity, the common characteristics or the device used in each offense must
be so unusual and distinctive as to be like a “signature.” Taylor v. State, 920 S.W.2d 319, 322
(Tex. Crim. App. 1996).
       Even 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. . . .” TEX. R. EVID. 403. Therefore, even if relevant on the issue of identity, the extraneous
offense evidence may still be inadmissible. Extraneous offense evidence is admissible under
both rules 403 and 404(b) if the evidence satisfies a two part test: (1) whether the extraneous
offense evidence is relevant to a fact of consequence in the case aside from its tendency to show
action in conformity with character, and (2) whether the probative value of the evidence is not
substantially outweighed by unfair prejudice. Page v. State, 213 S.W.3d 332, 336 (Tex. Crim.
App. 2006). The determination of whether the probative value of the challenged evidence is not
substantially outweighed by the danger of unfair prejudice requires the consideration of four
factors: (1) how compellingly the extraneous offense evidence serves to make more or less
probable a fact of consequence, (2) the potential of the evidence to impress the jury in an
irrational and indelible way, (3) the time needed to develop the evidence of extraneous
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misconduct, and (4) the degree of the proponent’s need for such evidence. Montgomery, 810
S.W.2d at 389-90.
Discussion
       The only direct evidence the State had connecting Appellant to the offense was his
ownership of a dark blue Tahoe and the eyewitness identification of a frightened young woman
who probably had less than three minutes to observe him. Appellant, in cross-examination,
attempted to show that her identification of Appellant was untrustworthy. In cross-examination
of Stokes and the Texas Ranger who prepared the photo lineup, he sought to cast doubt on the
reliability of Stokes’s identification of Appellant’s photograph. Identity was at issue.
       The evidence of the Marshall robbery was offered and admitted to show identity. The
two robberies occurred within two months. In both, the robber drove a dark blue Tahoe. A
robber entered both stores at around 5:00 p.m. In both instances, he wore a baseball cap and a
dark bandana. He held the pistol low around his waist with the muzzle pointed up at the victim.
In each case, after he got the money, the robber ordered the cashier or store owner to walk to the
back of the store. Both robberies were committed by a thin, white male with gray hair.
       Appellant contends that even if the evidence of the Marshall robbery was relevant, the
danger of unfair prejudice in its admission substantially outweighed its probative value.
       In making this determination under rule 403, the court must consider first “how
compellingly the evidence of extraneous misconduct serves to make more or less probable a fact
of consequence.” Montgomery, 180 S.W.2d at 389. This is often a function of similarity of the
extraneous misconduct to the charged offense and the strength of the state’s proof that the
defendant committed the extraneous misconduct. Id. at 390. Here, the two offenses shared
multiple distinctive characteristics that identified Appellant as the perpetrator of both. In’s
identification of Appellant as the Marshall liquor store robber coupled with the discovery in
Appellant’s Tahoe of a bullet fired from In’s pistol showed beyond a reasonable doubt that
Appellant committed the extraneous offense. Given the similar distinctive characteristics shared
by both robberies, In’s identification of Appellant as the Marshall robber provided compelling
evidence of Appellant’s identity as the robber of the Bullard Dollar General.
       We do not believe the evidence of the Marshall robbery had the potential to impress the
jury in an irrational way. The evidence of the extraneous offense had no adverse effect upon
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Appellant “beyond tending to prove the fact or issue that justified its admission into evidence.”
See Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). Moreover, the court properly
limited the jury’s consideration of the evidence of the Marshall robbery to the issue for which it
was admitted. See Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994).
       The time the State needed in developing the evidence of the extraneous misconduct, the
third Montgomery factor, weighs against its admission, and the State concedes as much.
Twenty-seven percent of the State’s direct examination was devoted to proof of the Marshall
robbery. The evidence was needed and inherently probative. But the expenditure of so much
time proving the extraneous offense risked diverting the jury’s attention from the charged
offense.
       The fourth Montgomery factor addresses the state’s need for the evidence and requires
answers to the following questions: (1) Does the state have other evidence to establish the fact
of consequence that the extraneous misconduct is relevant to show? (2) If so, how strong is that
evidence? And (3) is the fact of consequence related to an issue that is in dispute? Montgomery,
810 S.W.2d at 390. In this case, the only direct evidence the State possessed that Appellant was
the robber was the eyewitness testimony of a frightened nineteen year old woman who had
possibly three minutes to observe him. Although that was sufficient proof, its reliability could
easily be undermined. The State needed the evidence.
       Despite the inordinate time involved in proving the Marshall robbery, our analysis of the
four Montgomery factors leads us to conclude that the probative value of the evidence of the
Marshall robbery was not substantially outweighed by the danger of unfair prejudice. The trial
court’s ruling was well “within the zone of reasonable disagreement.” The trial court did not
abuse its discretion in admitting the evidence related to the Marshall robbery.
       In his first issue, Appellant also argues that the trial court erred in admitting Chief
Boswell’s testimony regarding the facts and circumstances surrounding Appellant’s arrest in Gun
Barrel City. At trial, Appellant raised an objection that the evidence of bullet holes in his Tahoe
was not relevant. On appeal, Appellant complains the testimony was inadmissible under rules
403 and 404(b). Appellant’s trial objection must comport with the issue raised on appeal.
Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993). Because it does not, no error
was preserved.
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        Next, Appellant insists that Sergeant Griffin’s testimony that he had been investigating
similar robberies prior to preparing a photo lineup for the Marshall robbery was inadmissible
propensity evidence under rules 403 and 404(b).                 On direct examination Sergeant Griffin
testified, as follows:


        I had been contacted by other agencies that were having similar robberies. We put out what kind
        of vehicle we were looking for in our robbery, and talking with other detectives that had the same
        kind of robberies. I got a call from a detective out of Smith County [who] advised me –

        Q: Let me ask you this: With that detective, when you got that information, did you, at that time,
        after getting that information, did you put together a photo line-up?

        A: Yes. Soon as I got a name of a suspect they had that possibly could be our robber, I took the
        name –


        Evidence of an extraneous offense must necessarily involve evidence of prior criminal
conduct by the defendant. McKay v. State, 707 S.W.2d 23, 31-32 (Tex. Crim. App. 1985), cert.
denied, 479 U.S. 871, 107 S. Ct. 239, 93 L. Ed. 2d 164 (1986). Since the challenged testimony
did not establish prior criminal conduct by Appellant, it was not improper extraneous offense
evidence.
        Finally, Appellant insists that the trial court erred in admitting testimony regarding the
discovery after his arrest of notices from the Anderson County District Attorney regarding
checks Appellant had written but that had not been paid.                    Appellant’s trial objection was
overruled. Later in the trial, however, when the documents were introduced, Appellant’s counsel
stated, “Without objection, Your Honor.” The benefit of an objection made outside the jury’s
presence is lost if, when the evidence is offered before the jury, the opponent states, “[N]o
objection.” Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992). Moreover, the
admission of inadmissible evidence is held harmless by the admission of evidence without
objection that proves the same fact. Hammons v. State, 856 S.W.2d 797, 802 (Tex. App.–Fort
Worth 1993, pet. ref’d). No error is preserved.
        Appellant’s first issue is overruled.


                                              JURY ARGUMENT
        In his second issue, Appellant complains that the prosecutor’s argument during the guilt-
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innocence phase of the trial emphasized the extraneous offense evidence improperly admitted
and was so inflammatory as to deny him a fair trial.
         The applicable standard is whether, in the light of the record as a whole, there is a
reasonable possibility the improper argument contributed to appellant’s conviction. Denton v.
State, 920 S.W.2d 311, 312 (Tex. Crim. App. 1996).
         Proper jury argument must fall within one of four general areas: summation of the
evidence; reasonable deduction from the evidence; answer to argument of opposing counsel; and
pleas for law enforcement. Franklin v. State, 693 S.W.2d 420, 429 (Tex. Crim. App. 1985).
         In the absence of an objection to jury argument and an adverse ruling, nothing is
presented for review. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). However, if
the prosecutor’s argument is so extreme and inflammatory as to deprive the appellant of a fair
trial, reversal is required. See, e.g., Boyde v. State, 513 S.W.2d 588, 590-93 (Tex. Crim. App.
1974).
         Appellant describes the State’s argument as so inflammatory as to require reversal despite
the absence of any objection at trial. Appellant complains particularly that the prosecutor
devoted much of his argument to the extraneous offense evidence, which Appellant contends was
improperly admitted. However, we have held that there was no error in the admission of
evidence related to the Marshall robbery. A prosecutor is permitted to refer to the evidence and
make reasonable deductions from it. We have reviewed the prosecutor’s argument. It was not so
egregious as to deny Appellant a fair trial as in Boyde. In the absence of any trial objection, no
error is preserved. Appellant’s second issue is overruled.


                                                    DISPOSITION
         The judgment is affirmed.
                                                                          BILL BASS
                                                                              Justice


Opinion delivered June 30, 2010.
Panel consisted of Griffith, J., Hoyle, J. and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.

                                              (DO NOT PUBLISH)
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