Affirmed and Opinion Filed August 15, 2016




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-15-01125-CR

                            COLLIN ROBERT ZACNY, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the 366th Judicial District Court
                                    Collin County, Texas
                            Trial Court Cause No. 366-80408-15

                              MEMORANDUM OPINION
                          Before Justices Myers, Stoddart, and Whitehill
                                  Opinion by Justice Whitehill
       The sole issue in this case is whether the trial court erred by admitting extraneous offense

evidence concerning three area burglaries in appellant’s theft of a firearm case. Appellant argues

that admitting this evidence was error because (i) the extraneous offenses were not same

transaction contextual evidence since full proof of the primary offense could be otherwise given,

(ii) the modus operandi of the primary offense and the extraneous offenses were not so

distinctively similar as to constitute a “signature,” and (iii) the extraneous offenses are not

sufficiently similar to the primary offense to be used to establish intent.

       As discussed below, we conclude that, even if the trial court erroneously admitted the

evidence, appellant did not establish resulting harm. We thus affirm the trial court’s judgment.
                                         I. Background

       On November 17, 2014, Jared Beesley discovered that someone had broken into his

vehicle. The glove box was open and things were in disarray. A .22 caliber Beretta handgun and

two cans of ammunition were missing.

       Appellant was apprehended two days later when the police were responding to a call

about another car break-in at 1:00 a.m. Appellant was in a nearby park, and ran from the police

when he saw them. His hand moved backward like he was throwing something. When the

police searched that area, they found a black .22 Beretta handgun that Beesley later identified as

the one that had been stolen.

       Appellant was charged with theft of a firearm, and his case was tried to a jury. Before

trial, appellant filed a motion in limine seeking to exclude evidence of three extraneous car

burglaries that occurred in the area two days after the Beesley break-in.

       During a hearing on the motion, defense counsel argued that the jury should not be

allowed to hear evidence that the police were investigating three other burglaries of motor

vehicles that occurred in the area because (i) the extraneous offenses did not qualify as same

transaction contextual evidence because the offenses did not occur immediately before or after

the primary offense, and (ii) the jury did not need to hear about the other burglaries to understand

the charged offense.

       The prosecutor responded that he only wanted to talk about the burglary that occurred

immediately before appellant was apprehended and that officers went to the park by appellant’s

home because they suspected he was responsible for the burglary. The prosecutor agreed to

approach the bench to obtain a ruling on the other two extraneous offenses. The trial court

denied the motion in limine and gave appellant a running objection.




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       All of the extraneous offense evidence was admitted at trial. When the evidence closed,

the jury found appellant guilty of theft of a firearm. The trial judge assessed punishment at two

years’ state jail incarceration, suspended and probated for five years.

                                            II. Analysis

A.     Did the trial court err by admitting the extraneous offense?

       Appellant’s sole issue complains that the trial court erred in admitting extraneous

evidence of three other burglaries that occurred in the area because (i) the offenses were not

same transaction contextual evidence since full proof of the primary offense could be given

without showing the other offenses, (ii) the modus operandi of the primary offense and the

extraneous offenses were not so distinctively similar as to constitute a “signature,” and (iii) the

extraneous offenses are not sufficiently similar to the primary offense as to establish intent.

       We review a trial court’s decision to admit extraneous offense evidence under an abuse of

discretion standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). We reverse

the trial court’s decision only if the ruling is outside the zone of reasonable disagreement. Ford

v. State, 919 S.W.2d 107, 115 (Tex. Crim. App. 1996).

       Admitting extraneous offenses to prove a person’s character or to show that the person

acted in conformity with that character is prohibited. TEX. R. EVID. 404(b). Evidence of

extraneous offenses, however, may be admitted to show “motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id.; see also

Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990). And evidence of extraneous

acts may also be admitted to rebut defensive theories. Lane v. State, 933 S.W.2d 504, 519 (Tex.

Crim. App. 1996).

       But here we need not decide whether the trial court abused its discretion by admitting the

extraneous offense evidence because, even assuming error, the record does not establish harm.

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B.      Did admitting the extraneous offense evidence harm appellant?

        The State argues that because similar evidence, a fourth extraneous offense about which

appellant does not complain, was admitted without objection, we should apply the rule that error

is cured when the same evidence is admitted without objection. See Hudson v. State, 675

S.W.2d 507, 511 (Tex. Crim. App. 1984). Appellant argues that the harmless error analysis does

not apply to improperly admitted extraneous offense evidence. Neither argument is persuasive.

        1.     Harm analysis applies to improperly admitted extraneous offense evidence.

        Appellant relies on Garza v. State, 715 S.W.2d 642, 644 (Tex. Crim App. 1986) to argue

that:

        Under a harmless error standard of review, the reviewing court looks at the
        remaining evidence to determine whether the remaining evidence is sufficient to
        sustain a conviction. Garza specifically allows this type of review when
        reviewing the improper admission of an extraneous offense; and therefore a
        harmless error standard of review does not apply to Mr. Zacny’s appeal.

(Italics added). Appellant’s reading of Garza to conclude that we do not review the erroneous

admission of extraneous evidence for harm is misplaced.

        Specifically, Garza involved a challenge to the sufficiency of the evidence with and

without the extraneous evidence.       Id.   Because the court of appeals did not consider the

sufficiency of the evidence with the improperly admitted extraneous evidence included, the court

of criminal appeals remanded for a sufficiency review.           Id. There was no discussion or

determination of harm. Instead, it is well-established that the improper admission of extraneous

evidence is subject to a harm analysis conducted under rule of appellate procedure 44.2(b):

        Any [non-constitutional] error, defect, irregularity, or variance [in a criminal case]
        that does not affect substantial rights must be disregarded.

TEX. R. APP. P. 44.2(b). See Carter v. State, 145 S.W.3d 702, 710 (Tex. App.—Dallas 2004, pet.

ref’d) (admission of extraneous evidence subject to rule 44.2(b) harm analysis); Franklin v.



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State, No. 05-09-00290-CR, 2011 WL 5925143, at *5 (Tex. App.—Dallas Nov. 29, 2011, pet.

ref’d) (same).

       2.        Applicable Standards.

       Under the harm analysis, “A substantial right is affected when the error had a substantial

and injurious effect or influence in determining the jury’s verdict.” Morales v. State, 32 S.W.3d

862, 867 (Tex. Crim. App. 2000); see also TEX. R. APP. P. 44.2(b). We should not reverse a

conviction for non-constitutional error if, after examining the record as whole, we have “fair

assurance that the error did not influence the jury, or had but a slight effect.” Johnson v. State,

967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

       In making this decision, we consider the entire record, including any testimony and

physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the

verdict, the character of the alleged error, and how it might be considered in connection with

other evidence in the case. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); Motilla

v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002). The weight of evidence of the

defendant’s guilt is also relevant in conducting the harm analysis under rule 44.2(b). Neal v.

State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008); Motilla, 78 S.W.3d at 356–57. And we

may consider the closing statements and voir dire, jury instructions, the State’s theory, any

defensive theories, and whether the State emphasized the alleged error. Motilla, 78 S.W.3d at

355–56; Morales v. State, 32 S.W.3d at 867.

       3.        Factual Context.

       Here, the complained-of evidence includes testimony about three vehicle burglaries that

occurred on November 19 (two days after the charged offense) at Brookview Drive, Parkbrook

Drive, and Jennifer Lane, all of which are in the same alleyway in the same neighborhood as the

charged offense. Because that evidence was introduced along with evidence of the charged

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offense and is best understood in sequence, we consider the evidence, extraneous and otherwise,

as a whole.

          Beesley testified about the burglary of his car on November 17 at his 8820 Woodstream

Drive residence in Frisco. He was leaving for work when he noticed that everything inside his

Ford Expedition was in disarray, and the glove compartment and center console had been “gone

through.” His .22 Beretta pistol and two cans of 9 mm ammunition were missing. There were

no broken windows or pry marks on the vehicle.

          Beesley called the police, and responding officers found one of the ammunition cans

behind a nearby tree. There were no smudges on the car, so it appeared that the thief had worn

gloves.

          Two days later, Mugo Muriithi, who lived a few blocks away from Beesley received a

text about a car alarm going off. When he looked outside, he saw someone wearing jeans and a

dark hooded sweater by his father’s car. Muriithi then notified his father and called the police.

          Sergeant Michael Choate responded to Muriithi’s call. Choate testified that there had

been “quite a few break-ins of vehicles in that area” in previous months. When he inspected

Muriithi’s father’s car, the door and glove compartment were open, and items were “scattered all

over the car.” Like the Beesley break-in, there were no broken windows or pry marks and

nothing of value had been taken. Although the car was checked for fingerprints, it appeared the

thief had worn gloves.

          While he was taking information for his report, Choate heard that other officers were

“contacting” a male in a nearby park, and he relayed to them Muirithi’s description of the

suspect.

          As Choate continued to investigate the surrounding area, he found a white car that had

also been broken into. He knew it was a break-in because the inside was in disarray.

                                                –6–
        Sergeant Ryan Moore was on patrol at 1:00 a.m. on November 19, 2014, when he heard a

call concerning a possible burglary in progress at 7711 Brookview Drive. Moore used a map to

show this location’s proximity to Beesley’s address in the same neighborhood. Moore told his

officers to look for the firearm that had been reported stolen two days earlier.

        The officers near the park considered appellant to be a suspect. So Moore went to a small

park between Muriithi’s and appellant’s houses. After a few minutes, he saw someone wearing a

dark hoodie and jeans walk from the direction of Muriithi’s house and cross a bridge into the

park.

        As Moore and another officer approached, another officer drove by. Appellant “took off

running at full sprint.” He stopped and squatted down, but his left hand moved backward like he

was throwing something. Appellant was then detained, and officers found a .22 Beretta handgun

when they searched the area appellant had thrown towards. Beesley later identified the gun as

the one stolen from his car.

        When the police searched appellant, they found a large hunting knife, a pocketknife, a

flashlight, and a key to a Dodge vehicle. Appellant told the officers that he was just out for a

walk and ran because he was scared after recent burglaries in the area. He also denied throwing

the gun and said it was not his. But Moore noted that appellant would not look him in the eye

and took a lot of time to think about his answer before responding. The officers retraced

appellant’s path to the bridge where they had first seen him. Just across the bridge, they found a

pile of items on the ground that included a sweatshirt, another knife, a screwdriver, a pair of

gloves, and a garage door opener.

        The officers then walked the alleyway where Choate was taking the report for the break-

in at 7711 Brookview. The officers used the garage door opener they had found, and it opened a

garage for a home just behind 7711 Brookview. When the garage door opened, the officers

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made contact with the residents and learned that the opener had been taken from one of the

residents’ cars.

        Officer Brent Stafford also responded to the call about the activity in the alleyway at

7711 Brookview. When Stafford arrived, he contacted Choate, who told him about the motor

vehicle burglary at that location. So Stafford investigated the alleyway for other potential

burglaries. He learned that someone else in the neighborhood had observed a person exiting his

driveway at 7612 Jennifer Lane. Stafford went to that address, and observed a gray Dodge

Durango parked in a driveway that had signs of a break-in. He made contact with the resident,

who owned one of the knives that had been found on appellant.

        Two months later, on January 5, 2015, officer David Connelly stopped to investigate a

potential car burglary when he saw a cabin light activated. He saw a figure rummaging inside

the car, and as he approached, he found appellant hiding next to the car. Appellant was wearing

gloves and surrounded by lottery tickets. Connelly asked who the car belonged to, and appellant

responded, “I was not in it.” Appellant said that he had been collecting the lottery tickets. There

were no fingerprints on the car and no signs of forced entry, but it appeared that the glove

compartment had been rummaged through and items strewn around. Appellant was arrested for

burglary of a motor vehicle. The testimony concerning the January 5 offense was admitted

without objection.

        Appellant testified in his defense. He said that he goes to the park every day to smoke

cigarettes because he cannot smoke in his house. On November 19, he had been smoking in the

park for about twenty minutes before he the police apprehended him. He had two knives and a

gun with him that night. He carried these items because he had been receiving death threats from

neighbors since he was a suspect in various neighborhood car burglaries. He denied seeing any

of the objects the police found by the bridge.

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       Appellant also claimed that he purchased the .22 from a neighbor, Nathan Gates, and that

he did not know that it was stolen. He further denied burglarizing any cars on November 17 or

19, and further denied running from the police. He did admit, however, that he had thrown the

gun away and lied about possessing it. He also admitted that he committed the January 5 car

burglary.

       4.      Harm Analysis.

       We note at the outset that appellant does not identify any specific harm that resulted from

admitting the extraneous offense evidence. Viewing the evidence as a whole, we conclude there

was no harm.

       There was ample evidence that appellant was guilty of the charged theft, and there was

little danger that the extraneous evidence would confuse the jury’s understanding of that

evidence.

       In addition to evidence supporting the jury’s verdict, the court’s charge included an

extraneous offense instruction:

       The State has introduced evidence of extraneous crimes or bad acts other than the
       one charged in the indictment in this case. The evidence was admitted only for the
       purpose of assisting you, if it does, in determining credibility, motive,
       opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
       accident, or to rebut a defensive theory. You cannot consider the testimony for
       any purpose unless you find and believe beyond a reasonable doubt that the
       defendant committed such other acts, if any were committed.

We presume that the jury followed this instruction. See Hutch v. State, 922 S.W.2d 166, 170

(Tex. Crim. App. 1996).

       Both the State and the defense discussed the extraneous offenses in closing argument.

But the defense began its argument by reminding the jury that the issue to be determined was

theft of a firearm, and warned the jury not to let the extraneous offense evidence distract them.




                                              –9–
The defense also emphasized the extraneous offense instruction in the charge. The majority of

the defense’s argument, however, was devoted to reasonable doubt about the charged offense.

       The State, consistent with the court’s instruction, told the jury they could consider the

extraneous evidence for a common scheme, plan, or identity, but also emphasized the evidence

concerning the charged offense. The State further argued that appellant’s testimony was not

credible.

       Based on our review of the record as a whole, we conclude that any error in admitting the

extraneous offense evidence did not have a substantial or injurious effect of the jury’s verdict

and did not affect appellant’s substantial rights. See TEX. R. APP. P. 44.2(b).

       We thus resolve appellant’s sole issue against him, and we affirm the trial court’s

judgment.




                                                    /Bill Whitehill/
                                                    BILL WHITEHILL
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47
151125F.U05




                                               –10–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

COLLIN ROBERT ZACNY, Appellant                    On Appeal from the 366th Judicial District
                                                  Court, Collin County, Texas
No. 05-15-01125-CR       V.                       Trial Court Cause No. 366-80408-15.
                                                  Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee                      Justices Myers and Stoddart participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered August 15, 2016.




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