                                                                         PD-0596-15
                           PD-0596-15                   COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                      Transmitted 5/18/2015 12:00:00 AM
                                                         Accepted 5/19/2015 3:28:35 PM
                                                                         ABEL ACOSTA
            COURT OF CRIMINAL APPEALS                                            CLERK



                           PD-_______-15

       Terrish Germaine Garmon, Appellant
                         v.
             State of Texas, Appellee.
                    On Discretionary Review from
                        No. 05-13-00702-CR
                       Fifth Court of Appeals

                   On Appeal from No. F12-34332
                    Criminal District Court No. 3
                          Dallas County

          Motion to Extend Time to File
         Petition for Discretionary Review
Michael Mowla
445 E. FM 1382 No. 3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680                        May 19, 2015
Attorney for Appellant
To the Honorable Judges of the Court of Criminal Appeals:

      Appellant Terrish Germaine Garmon moves for an extension of time of 30

days to file a petition for discretionary review:

      1.      On May 12, 2015, in Garmon v. State, 05-13-00702-CR (Tex. App.

Dallas, May 12, 2015), the Court of Appeals affirmed Appellant’s conviction. See

attached.

      2.      The petition for discretionary review is due on June 11, 2015.

      3.      For good cause, Appellant asks for an extension of 30 days until July

11, 2015 to file the petition for discretionary review.

      4.      No previous extension to file the petition for discretionary review has

been filed.

      5.      Appellant relies on the following facts as good cause for the requested

extension: undersigned counsel Michael Mowla just completed a brief in a large

federal tax fraud case in USA v. Perez, 15-10026, which was filed in the Fifth

Circuit on May 15, 2015.

      6.      Further, Mowla has the following briefs, petitions for discretionary

review, or other pleadings due soon:

             Motion and Brief under 28 U.S.C. § 2255 in USA v. Boutte, 4-12-CR-
              00249, to be filed in the Eastern District of Texas.

             Appellant’s Brief due in USA v. Wafer, 15-10089, Fifth Circuit, due
              May 27, 2015.

                                       Page 2 of 4
             Petition for Rehearing En Banc in USA v. Trevino, 13-50849, Fifth
              Circuit, due June 4, 2015, 2015.

             Reply Brief in a proceeding 28 U.S.C. § 2254 in Esparza v. Director,
              4-14-CV-00694, Eastern District of Texas, due June 19, 2015.

             Two applications for writs of habeas corpus under Article 11.072 and
              11.09 expected to be filed in the next few weeks in Denton and
              Tarrant Counties.

      7.       In addition, Mowla was recently appointed in a death penalty case

under Article 11.071 in Ex parte Kenneth Thomas, F86-85539.

      8.       Mowla also continues to work on a federal habeas corpus death

penalty case, Jones v. Stephens, 4:05-CV-638, Northern District of Texas.

      9.       Finally, Mowla also continues to work on several habeas cases

involving the underlying issue in Miller v. Alabama, 132 S.Ct. 2455 (2012).

      10.      This Motion is not filed for purposes of delay, but so that justice may

be served.

                                        Prayer

      Appellant prays that this Court grant this motion for an extension of time to

file a petition for discretionary review.

                                        Respectfully submitted,




                                       Page 3 of 4
                                      Michael Mowla
                                      445 E. FM 1382 No. 3-718
                                      Cedar Hill, Texas 75104
                                      Phone: 972-795-2401
                                      Fax: 972-692-6636
                                      michael@mowlalaw.com
                                      Texas Bar No. 24048680
                                      Attorney for Appellant




                                      /s/ Michael Mowla
                                      By: Michael Mowla

                              Certificate of Service

       I certify that on May 16, 2015, a true and correct copy of this document was
served by email on the District Attorney’s Office, Dallas County, Appellate
Division to Lori Ordiway at lori.ordiway@dallascounty.org, Lisa Smith at
lisa.smith@dallascounty.org,         and        on        Rebecca        Ott     at
rebecca.ott@dallascounty.org; and by email on the State Prosecuting Attorney to
Lisa McMinn at Lisa.McMinn@spa.texas.gov, and John Messinger at
john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and 68.11
(2015).




                                      /s/ Michael Mowla
                                      By: Michael Mowla




                                    Page 4 of 4
AFFIRM; and Opinion Filed May 12, 2015.




                                          Court of Appeals
                                                           S     In The


                                   Fifth District of Texas at Dallas
                                                       No. 05-13-00702-CR

                                   TERRISH JERMAINE GARMON, Appellant
                                                  V.
                                      THE STATE OF TEXAS, Appellee

                               On Appeal from the Criminal District Court No. 3
                                            Dallas County, Texas
                                     Trial Court Cause No. F-1234332-J

                                          MEMORANDUM OPINION
                                  Before Justices Lang-Miers, Brown, and Schenck 1
                                              Opinion by Justice Brown
          Terrish Jermaine Garmon appeals his conviction for burglary of a habitation in Irving,

Texas, owned by Jude Garcia. A jury found appellant guilty and assessed his punishment at

fifteen years’ confinement and a $10,000 fine. In two issues on appeal, appellant contends the

trial court abused its discretion in admitting evidence of four extraneous offenses and contends

the evidence is insufficient to prove he committed the charged offense. For reasons that follow,

we affirm the trial court’s judgment.

                                                            BACKGROUND

          Appellant was indicted for burglary of Garcia’s habitation under two alternative theories.

The indictment alleged he intentionally and knowingly entered the habitation without Garcia’s


     1
      Justice David Schenck succeeded Justice Michael O’Neill, a member of the original panel, following Justice O’Neill’s retirement. Justice
Schenck has reviewed the briefs and the record before the Court. See TEX. R. APP. P. 41.1(a).
effective consent, with the intent to commit theft. It also alleged appellant intentionally and

knowingly entered the habitation without Garcia’s effective consent and committed and

attempted to commit theft. See TEX. PENAL CODE ANN. § 30.02(a) (West 2011). Appellant

entered a plea of not guilty.

           Before voir dire, the State asked the trial court to allow it to present evidence of

unadjudicated extraneous offenses under the theories of doctrine of chances and modus operandi.

The prosecutor described three unadjudicated offenses committed in a manner similar to the

charged burglary and asserted those offenses were admissible to prove appellant committed the

instant offense. The trial court made a preliminary ruling that the evidence was relevant and that

its probative value outweighed its prejudicial effect, subject to the State proving up the

allegations. After jury selection, the trial court held a hearing outside the presence of the jury at

which the State put on evidence of the unadjudicated extraneous offenses — two burglaries in

Grand Prairie and Fort Worth and one attempted burglary in Coppell. 2 The State also presented

evidence of appellant’s 2005 conviction for unauthorized use of a motor vehicle that it wished to

introduce at guilt/innocence. Appellant objected to the evidence under rules of evidence 404(b)

and 403. The court reaffirmed its earlier ruling allowing the evidence of the unadjudicated

offenses and also ruled it would allow evidence of the prior conviction.

The Irving Burglary/Charged Offense

           At trial, Jude Garcia testified that in 2012, he owned a motorcycle, described as a

“supersport” bike, that he wanted to sell. Garcia posted an ad on Craigslist with a description

and pictures of the bike. The ad included Garcia’s cell phone number, but not his address. Only

one person called Garcia in response to the ad, and that man wanted to come look at the bike.

Garcia gave the man his address in Irving, but he did not show up or call to cancel. The next

   2
       At this pretrial hearing, there was also evidence of a similar incident in Garland, but the State never presented this offense to the jury.



                                                                        –2–
morning, May 26, 2012, Garcia called the man back to ask if he was still interested. The man

said he was no longer interested and “kind of laugh[ed]” at Garcia and hung up. When Garcia

left his house later, he noticed two holes in his garage doors. When he opened the garage, his

bike was gone. The holes were cut near an emergency latch. Someone could reach in through

the hole, pull the emergency latch, and roll the door up. Garcia called the police.

        Garcia’s wife, Patricia Garcia, testified that after the police left and without their

knowledge, she decided it would be a good idea to contact the man who had called about the

motorcycle. The mobile number for the person she contacted was (972) 800-4920. Using her

cell phone, Patricia Garcia texted his phone number, pretending she had met him before and was

interested in him. She also spoke with the person over the phone. Patricia asked if he had a

motorcycle, and he said he did. He identified himself to her as “Terry.” He also texted Patricia a

picture of himself. Patricia identified appellant in court as the person in the photograph, and the

photo was admitted into evidence. Appellant and Patricia texted back and forth for about a

week.

        While Patricia Garcia was on the stand, the State introduced into evidence State’s Exhibit

No. 5. The documents contained in that exhibit were provided by T-Mobile in response to a

subpoena duces tecum asking for phone records for (972) 800-4920, the number of the person

who called to inquire about Garcia’s motorcycle.         T-Mobile’s records show that number

belonged to a “Terrytish J. Garmon.” The exhibit also included a list of calls and texts made to

and from (972) 800-4920 in May and June 2012. Exhibit No. 5 shows two calls from appellant’s

cell phone to Jude Garcia’s phone on May 25, 2012. The records also showed Patricia and

appellant had exchanged phone calls and text messages.

        Irving Police Officer Philip Pearson responded to Jude Garcia’s call to police about the

missing motorcycle. He testified that the holes in Garcia’s garage doors were in the upper

                                                –3–
panels, about six inches from the ceiling. Pearson stated you could reach in through the holes to

pull an emergency release rope to allow you to open the garage door. It was like someone used a

power saw to cut a circle out of the door. Pearson did not find any fingerprints on the doors.

Pearson had never seen holes cut in a garage in that part of town and had not seen that method

used for stealing a motorcycle. Garcia gave Pearson the phone number of the person who had

contacted him about the Craigslist posting.

          Detective Rocky Bailey was assigned to follow up on the case. He testified that he ran

the cell phone number Garcia provided through a computer program. The number came back to

a Terrish Garmon. Bailey also had the photograph that had been texted to Patricia Garcia.

Bailey searched the name Terrish Garmon on Facebook and found a Facebook page in that name

that included the same photograph. Next Bailey found an address for Terrish Garmon. Bailey

had been investigating vehicle thefts since 1998 and had not seen holes cut in a garage before.

He testified it was “very unique.” Because of the unique cutting of the holes in Garcia’s garage,

Bailey shared information about the burglary with other law enforcement agencies in the area.

          Detective Bailey obtained a search warrant for appellant’s residence. He did not find the

motorcycle or any stolen motorcycle parts. Bailey did find a piece of cardboard on which about

thirty motorcycle descriptions were written, along with phone numbers and cities. Bailey said it

was likely this information was from Craigslist ads. Bailey began to call the phone numbers

listed.    When Bailey called a Mark Menkiena in Grand Prairie, Menkiena told Bailey his

motorcycle had been stolen.

Unadjudicated Extraneous Offenses

          Coppell Police Detective Steve Hayes testified that in March 2012, he investigated an

attempted burglary of a habitation in Coppell owned by Jonathan Mohr. Mohr’s garage door had

a hole cut in it. This attempted entry method was very unusual, and Hayes hadn’t seen it before.

                                                –4–
Mohr had placed a motorcycle for sale on Craigslist. Detective Hayes had the phone number of

a person who had called Mohr about the motorcycle. The number was (469) 360-1379. During

Hayes’s testimony, State’s Exhibit No. 13 was admitted into evidence. The exhibit contained

phone records for the number (469) 360-1379. Hayes testified the name associated with that

mobile number was Terrish Garmon. Mohr’s motorcycle was not taken. Mohr’s dog started

barking, and Mohr came outside.

       Detective Hayes shared information about this crime with other agencies and also

gathered information from other agencies. He received information about a similar case out of

Fort Worth. In that case, the complainant placed a motorcycle for sale on Craigslist. There was

a hole in the garage door, and the motorcycle was taken. The same mobile number used in the

Coppell case was used in the Fort Worth case. Hayes also had information about a similar case

in Grand Prairie. Again, there was a hole in the garage door and a missing motorcycle. The

phone number used was again the 469 phone number that records indicated belonged to Terrish

Garmon. Hayes looked into Terrish Garmon and learned about a 2004 Richardson offense

involving a motorcycle that had been taken from a garage after holes were cut into the garage

door. Appellant was found on the stolen motorcycle.

       Jonathan Mohr of Coppell testified that someone attempted to steal his motorcycle on

March 18, 2012. Mohr put an ad for his motorcycle on Craigslist. A man called him on March

17th and asked if he could come by and look at it. Mohr had received a few calls about the

motorcycle, but only gave his address to this one person.     Mohr set up a meeting with that

person for late afternoon on March 17, but the man called back and said he was not going to be

able to make it. Although they discussed getting together another day, the man never called back

to reschedule or follow up. At about 3:30 a.m. that night, Mohr heard his dog barking and got up

to check the inside of the house. The next morning, Mohr found a hole in his garage door. His

                                              –5–
motorcycle was still in the garage. Phone records indicated that the man called him from the

number (469) 360-1379. Looking at State’s Exhibit No. 13, the phone records associated with

that number, Mohr testified they showed he exchanged phone calls and text messages with that

number.

       Bruce Carr testified that his son listed a motorcycle for sale on Craigslist. In early April

2012, the motorcycle was stolen from Carr’s home in Fort Worth. The day before the bike was

stolen, Carr got a call from someone who identified himself as Terry and wanted to come take a

look at the bike. Carr gave the man his address, and the man said he would be over that day.

Neither Carr nor his son had given the address out to anyone else regarding the bike. The man

called back to cancel. The next morning, when Carr was backing his car out of the garage, he

noticed three holes in the garage doors and realized the motorcycle was missing. When Carr did

a reverse search on the phone number of the man he spoke to about the bike, it was connected to

a Terrish J. Garmon.

       Mark Menkiena testified that in 2012 he owned a motorcycle or sportbike and, because

he lived in an apartment, kept it in the garage of a friend’s home in Grand Prairie. In April 2012,

he decided to sell the motorcycle and put it up for sale on Craigslist. Two men called him about

it. Menkiena provided his friend’s address to one of them and went there to wait, but the man

did not show up and called to say he wasn’t going to make it. The next morning, Menkiena’s

friend called to ask if Menkiena had picked the motorcycle up from his house because it was

gone. There were no holes in the garage door or other signs of forced entry. Menkiena’s friend

told him he left a door into the garage unlocked. Menkiena provided police with the phone

number of the man who had called him. Menkiena testified that his phone number and a

description of his bike were among those listed on the paper found by Detective Bailey at

appellant’s house.

                                               –6–
Appellant’s Prior UUMV Conviction

       Dustin Mantell testified that in April 2004, a sportbike he owned was stolen from his

mother’s garage overnight. A triangular hole was cut in the garage and used to access a manual

release. Mantell had not put the motorcycle up for sale. The police later called Mantell to tell

him his motorcycle had been recovered. It had been in a wreck and was in poor condition.

Mantell’s mother’s name, Carol Conway, was on the title to the motorcycle because she had

cosigned for it.

       Dallas Sheriff’s Deputy Willie Washington testified that he took appellant’s fingerprints

that morning. He compared the prints with those in State’s Exhibit No. 23, a certified copy of a

judgment, and testified that they were the same. Washington testified the judgment showed that

appellant, Terrish Jermaine Garmon, was convicted of unauthorized use of a motor vehicle in

October 2005. The date of the offense was April 27, 2004, and the complainant was Carol

Conway.

       Appellant rested without presenting any evidence.

       The court’s charge on guilt/innocence instructed the jury that it could not consider any

testimony regarding appellant having committed offenses other than the charged offense unless it

found beyond a reasonable doubt that appellant committed such other offenses. The charge

further instructed that, even then, the jury was only to consider such evidence in determining

motive, intent, scheme, design, or identity. The jury found appellant guilty and assessed his

punishment at fifteen years’ confinement and a $10,000 fine. This appeal followed.

                       ADMISSION OF EXTRANEOUS OFFENSE EVIDENCE

       In his first issue, appellant contends the trial court abused its discretion in allowing the

State to present evidence of the extraneous burglaries or attempted burglaries and evidence of the

2005 conviction.    Appellant contends the trial court abused its discretion in allowing the

                                               –7–
evidence because: 1) the State failed to prove beyond a reasonable doubt he committed the

unadjudicated extraneous offenses; 2) the extraneous offenses did not meet the criteria for

admissibility under rule of evidence 404(b); and 3) the probative value of these extraneous

offenses was substantially outweighed by the danger of unfair prejudice.

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

person in order to show he acted in conformity therewith. TEX. R. EVID. 404(b). It may be

admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.         Id.   Whether extraneous offense

evidence has relevance apart from character conformity is a question for the trial court. De La

Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). Thus, a trial court’s ruling on the

admissibility of extraneous offenses is reviewed under an abuse of discretion standard. Id. As

long as the trial court’s ruling is within the “zone of reasonable disagreement,” there is no abuse

of discretion. Id. at 343–44. Further, a trial court cannot admit extraneous offense evidence

unless a jury could find beyond a reasonable doubt that the defendant committed the extraneous

offense. Fischer v. State, 268 S.W.3d 552, 558 (Tex. Crim. App. 2008).

       One of the main rationales for admitting extraneous offense evidence is to prove the

identity of the offender. Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008). Here, the

theory of relevancy is usually that of modus operandi in which the pattern and characteristics of

the charged crime and uncharged misconduct are so distinctively similar that they constitute a

“signature.”   Id.   No rigid rules dictate what constitutes sufficient similarities.     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. The “doctrine of chances” may also come into play when using extraneous

offenses to prove identity. That doctrine tells us that highly unusual events are unlikely to repeat

                                                –8–
themselves inadvertently or by happenstance. Carrizales v. State, 414 S.W.3d 737, 745 (Tex.

Crim. App. 2013). For the doctrine to apply, there must be a similarity between the charged and

extraneous offenses, since it is the improbability of a like result being repeated by mere chance

that gives the extraneous offense its probative weight. Brown v. State, 96 S.W.3d 508, 512 (Tex.

App.—Austin 2002, no pet.).

       Relevant evidence may nevertheless 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. TEX. R.

EVID. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that

relevant evidence will be more probative than prejudicial. Martinez v. State, 327 S.W.3d 727,

737 (Tex. Crim. App. 2010). Unfair prejudice refers not to an adverse or detrimental effect of

evidence but to an undue tendency to suggest a decision on an improper basis. Casey v. State,

215 S.W.3d 870, 883 (Tex. Crim. App. 2007). When undertaking a rule 403 analysis, the trial

court must balance 1) the inherent probative force of the proffered 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 be repetitive. Id.;

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). As with rule 404(b), we

review a trial court’s decision to admit evidence in the face of a 403 objection under an abuse of

discretion standard, and the court does not abuse its discretion as long as its decision is within the

zone of reasonable disagreement. De La Paz, 729 S.W.3d at 343–44.




                                                 –9–
       We address appellant’s first two complaints about the unadjudicated extraneous offense

evidence together. First, appellant asserts the trial court abused its discretion in admitting this

evidence because the State did not prove beyond a reasonable doubt that he committed these

offenses.   Similarly, appellant also maintains the unadjudicated extraneous offenses were

inadmissible under 404(b) to show his identity because he was not sufficiently tied to those

offenses. Appellant maintains that without any evidence he was at the location of the burglaries

or attempted burglaries, or evidence that he was in possession of burglary tools or the stolen

motorcycles, it was not established that he committed the offenses. We disagree.

       The charged burglary was committed in May 2012. The extraneous burglaries and

attempted burglary were committed near that time, in March and April of 2012. Like the

charged offense, the stolen item in the two other burglary cases was a motorcycle. In the

attempted burglary case, someone made efforts to get into a garage where a motorcycle was

stored. In all three extraneous offenses, like the instant offense, the motorcycle owner had

placed the bike for sale on Craigslist. In all three cases, the bike owner had given the address

where the motorcycle was located out to only one person. Each time, that person said he was

coming over to see the motorcycle, but did not show up. And each time, the motorcycle was

stolen, or an attempt was made to steal it, that night. In the Grand Prairie, Fort Worth, and

Coppell cases, the person who called to set up a time to come to see the motorcycle used phone

number (469) 360-1379. That phone number belonged to a Terrish Garmon. Although a

different phone number was used in the Irving burglary, that number was also linked to Terrish

Garmon. In the Coppell attempted burglary and the Fort Worth burglary, someone cut holes in

the garage as a means of opening the garage door. That same method was used to gain entry to

Garcia’s garage in the charged offense.     Both Detective Hayes and Detective Bailey testified

that this was a very unique method of committing burglary. Although no holes were cut into the

                                              –10–
garage in the Grand Prairie case and there were no other signs of forced entry, there was

evidence the homeowner had left a door into the garage unlocked.

       The characteristics of the charged offense and the uncharged offenses are so distinctively

similar that they constitute appellant’s signature or modus operandi. Appellant asserts that no

evidence ties him to the crimes. Yet his cell phone number was used to contact the owners of the

motorcycles, and in each case, he was the only person to whom the bike owner gave the location

of the bike. That appellant would be the only person to get the address of a motorcycle and for

that motorcycle to disappear that same night in a similar way each time is such a highly unusual

event it is unlikely to happen by coincidence. We conclude a jury could have found beyond a

reasonable doubt that appellant committed the three unadjudicated offenses. Likewise, the trial

court did not abuse its discretion in determining that the uncharged offenses were admissible

under rule 404(b) to show identity.

       Appellant also asserts the 2005 conviction was not admissible at guilt/innocence under

rule 404(b) because it was not a burglary conviction and it was too remote. In his brief, appellant

refers to the 2005 conviction as one for the offense of evading arrest. Appellant was convicted

of two offenses stemming from his use of David Mantell’s motorcycle, unauthorized use of a

motor vehicle and evading arrest. At the hearing outside the jury’s presence on the admissibility

of extraneous offenses, the court ruled that it would allow evidence of the UUMV conviction,

but would not allow the State to discuss the evading arrest. The State did not introduce evidence

of the evading arrest conviction until the punishment phase. Because appellant’s evading arrest

conviction was not in evidence during the guilt/innocence phase of trial, his argument about it

lacks merit. Further, assuming appellant meant to complain about the unauthorized use of a

motor vehicle conviction, his brief does not mention UUMV at all, and thus he has not properly

briefed this argument. See TEX. R. APP. P. 38.1.

                                              –11–
       Even if we construe appellant’s brief liberally to include a complaint regarding the

admission of the unauthorized use of a motor vehicle conviction, there was no error. We are not

persuaded the prior conviction should have been excluded under rule 404(b) merely because the

offense was unauthorized use of a motor vehicle instead of burglary. The circumstances under

which appellant came to be in possession of the motor vehicle, a motorcycle, are similar to the

charged offense. Mantell’s sportbike was stolen from his mother’s garage overnight. A hole

was cut in the garage to access a manual release.         Appellant was found riding the stolen

motorcycle.

       Regarding remoteness of the conviction, rule 404(b) contains no restrictions on how

recent an extraneous offense must be to be admissible. TEX. R. EVID. 404(b); cf. TEX. R. EVID.

609 (for purpose of attacking credibility of witness, evidence of prior conviction is generally

inadmissible if more than ten years have elapsed from date of conviction). Remoteness is an

element of an offense’s probative value under rule 403. Gaytan v. State, 331 S.W.3d 218, 226–

27 (Tex. App.—Austin 2011, pet ref’d). Remoteness alone is not a reason for the exclusion of

extraneous offense evidence. Id. But it can significantly lessen the probative value of such

evidence because the passage of time allows people to change. Id. at 226. Thus, we will

consider appellant’s argument about remoteness in our discussion below of his complaint that all

extraneous offenses should have been excluded under rule 403.

       Appellant’s final complaint about the extraneous offense evidence is that the trial court

abused its discretion in allowing that evidence, both the uncharged offenses and the prior

conviction, because its probative value was substantially outweighed by its prejudicial effect.

Appellant asserts the evidence had great potential to impress the jury in an “irrational yet

indelible way,” and also complains the State spent a considerable amount of time developing this

evidence when it was not necessary to the State’s case.
                                              –12–
        The uncharged offenses were highly important to the State’s case to show appellant’s

identity as the person who committed the burglary of Garcia’s habitation. They showed that the

way in which the instant offense was committed was appellant’s signature. Viewed in isolation,

the fact that Garcia’s motorcycle was stolen the night appellant called about it could be seen as

mere coincidence. But evidence that three other homes with motorcycles for sale had recently

been broken into the same night appellant called about the motorcycles, suggested it was not

mere chance.

        Regarding the prior conviction, it was for the offense of unauthorized use of a motorcycle

committed eight years before the charged offense. The remoteness of the conviction weighs

against its probative value. But other factors favor its admissibility, including the similarities

between that offense and the charged crime, and the fact that it was the only evidence that

directly connected appellant to a motorcycle that had been stolen using a method similar to that

used in the instant case.

        In addition, the potential for any unfair prejudice or confusion of the issues based on the

admission of this evidence, as well as the uncharged offenses, was slight. Further, the court

instructed the jury that it was only to consider the extraneous offenses if it found beyond a

reasonable doubt appellant committed them and, even then, to only consider it to determine

motive, intent, scheme, design, or identity. Including voir dire and the punishment phase, this

trial lasted only three days. We cannot say that the State devoted an inordinate amount of time to

presentation of the extraneous offenses. We cannot conclude it was an abuse of discretion for

the trial court to determine that the probative value of the extraneous offenses was not

substantially outweighed by their prejudicial effect and overrule appellant’s 403 objections. We

overrule appellant’s first issue.




                                               –13–
                                 SUFFICIENCY OF THE EVIDENCE

         In his second issue, appellant contends the evidence is insufficient to prove he committed

burglary of a habitation. Again he argues that there is nothing to place him at or near Garcia’s

house or no evidence that he was in possession of items stolen from the house or of burglary

tools.

         When reviewing the sufficiency of the evidence, we consider all of the evidence in the

light most favorable to the verdict to determine whether, based on that evidence and the

reasonable inferences therefrom, a jury was rationally justified in finding guilt beyond a

reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Jackson v.

Virginia, 443 U.S. 307, 318–19 (1979). Each fact need not point directly and independently to

the guilt of the defendant, as long as the cumulative force of all the incriminating circumstances

is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). Circumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone can be sufficient to establish guilt. Id. Further, the jury is the sole

judge of the credibility of the witnesses and the weight to be given their testimony. Temple, 390

S.W.3d at 360.

         After reviewing the record in the light most favorable to the verdict, we conclude the

circumstantial evidence presented at trial was sufficient to show appellant’s identity as the

person who entered Garcia’s habitation and committed the theft of his motorcycle.                 As

previously discussed, the evidence showed appellant called Garcia to inquire about buying his

motorcycle, which had been listed for sale on Craigslist. Appellant was the only person who

called Garcia about the bike and the only person to whom Garcia gave his address. Appellant

said he was going to come see the bike, but did not show up. The motorcycle was stolen that

night. Holes were cut in Garcia’s garage to gain access to an emergency latch. Police detectives

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testified this was a very unusual way to commit burglary. After the motorcycle had been stolen,

but before Garcia knew about the theft, Garcia called appellant, and appellant said he was no

longer interested in the bike and kind of laughed at Garcia. The State presented evidence that in

three other recent instances, after a motorcycle owner had advertised the bike on Craigslist,

appellant had called to get the location of the bike and set up a time to view it, but then

cancelled. Each time, that same night, the owner’s garage was broken into. In two of these three

cases, the garage doors were cut in the same way Garcia’s had been. In the third case, a garage

door had been left unlocked. Also, eight years earlier, appellant was found using a sportbike that

was stolen from a garage that had holes cut into it. Under the doctrine of chances, it is highly

unlikely that it was just a matter of coincidence that Garcia’s habitation and the others would

have been burglarized using the same method of entry the very night appellant called to inquire

about the motorcycle for sale and get the address. The combined and cumulative force of all the

incriminating circumstances is sufficient to support this burglary conviction.      We overrule

appellant’s second issue.

       We affirm the trial court’s judgment.




                                                   /Ada Brown/
                                                   ADA BROWN
                                                   JUSTICE

Do Not Publish
TEX. R. APP. P. 47.

130702F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

TERRISH JERMAINE GARMON,                              On Appeal from the Criminal District Court
Appellant                                             No. 3, Dallas County, Texas
                                                      Trial Court Cause No. F-1234332-J.
No. 05-13-00702-CR        V.                          Opinion delivered by Justice Brown. Justices
                                                      Lang-Miers and Schenck participating.
THE STATE OF TEXAS, Appellee

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


Judgment entered this 12th day of May, 2015.




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