                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________

                             NO. 09-12-00243-CR
                            ____________________

                     JOSH ALFRED LAWSON, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
______________________________________________________                           _

                On Appeal from the 359th District Court
                     Montgomery County, Texas
                   Trial Cause No. 10-05-04694-CR
_______________________________________________________                          _

                          MEMORANDUM OPINION

      A jury convicted Josh Alfred Lawson of burglary of a habitation and the trial

court sentenced Lawson to life in prison. In a single appellate issue, Lawson

challenges the admission of extraneous-offense evidence at trial. We affirm the

trial court’s judgment.

      On January 11, 2010, someone broke into Don Huber’s home and took a

safe that contained jewelry, guns, ammunition, and documents. Huber told police

that he suspected Lawson. Huber explained that Lawson first came to Huber’s

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home with a realtor when the home was for sale. Lawson came to the home a

second time with a different realtor. Huber testified that Lawson came to the home

a third time and wanted to discuss Huber’s longhorns, but that Lawson walked

around the house and never looked at the longhorns. About two weeks later,

Lawson came to the house a fourth time, and Huber found the frequent visits

unusual and contacted the police. On cross-examination, the defense elicited

Huber’s testimony that an exterminator, a man who spread fertilizer, and family

members all knew about the safe.

      On cross-examination of Detective Keith Winford, the defense elicited

testimony that officers found no direct physical evidence, such as fingerprints or

DNA, inside Huber’s home. Winford also testified that no witnesses or physical

evidence placed Lawson inside the home. Detective Mike Price testified, on cross-

examination, that there were no eyewitnesses to the burglary and no direct

evidence placing Lawson inside the home. Dan Camillo, owner of Camillo’s Fine

Jewelry, testified on cross-examination that although he and Huber had a

disagreement, law enforcement officers never questioned him about involvement

in the burglary.

      The State sought to introduce evidence of three other burglaries on grounds

that the defense had opened the door through its cross-examination of Huber,

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Winford, Price, and Camillo. The State argued that the burglaries were admissible

for several purposes, including identity. The defense objected pursuant to Rules of

Evidence 403 and 404(b). The trial court found that the evidence was admissible

for proving identity or scheme and that its probative value was not outweighed by

the danger of unfair prejudice.

      The State subsequently presented evidence of the three extraneous

burglaries. First, Carolyn Boyett testified that on the morning of December 18,

2009, she heard an intruder in her home. Boyett saw a man walk around the side of

her home toward a white pickup truck. Price testified that Lawson and another man

had rented the truck. Price testified that Lawson was indicted for burglary of the

Boyett home. Second, Marilyn Hancock testified that her home was burglarized on

January 6, 2010, and her jewelry was stolen, including some Mikimoto pearls.

Price testified that Royal Coin and Jewelry (“Royal Coin”) paid Lawson several

thousand dollars for some Mikimoto pearls. Price testified that Lawson was

indicted for burglary of the Hancock home. Third, Price testified that on February

17, 2010, jewelry and guns were taken from Joe Havens’s home. Winford testified

that he recovered some of the jewelry from Royal Coin. Royal Coin had paid

Lawson for the jewelry. Price testified that Lawson was indicted for burglary of the




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Havens home. The trial court gave the jury an instruction limiting its consideration

of the burglaries to the sole purpose of identity.

      On appeal, Lawson contends that: (1) the trial court erred by finding that the

three burglaries were admissible to prove identity; (2) the extraneous-offense

evidence was not sufficiently similar to the charged offense; (3) the evidence was

inadmissible under Rule 403; and (4) the admission of the evidence caused harm.

We review a trial court’s admission of extraneous-offense evidence under an abuse

of discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App.

1998) (op. on reh’g). Evidence of other crimes, wrongs, or acts may be admissible

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

knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b).

Extraneous-offense evidence may be admissible to show identity only when

identity is an issue. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996).

Identity may be raised by the defense during its cross-examination of the State’s

witnesses. Id. The extraneous offense must be so similar to the charged offense that

the offenses are marked as the defendant’s handiwork. Id. “[S]ufficient similarity

may be shown by proximity in time and place or by a common mode of

committing the offenses.” Id.




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      On cross-examination of the State’s witnesses, the defense placed identity in

issue by eliciting testimony suggesting that someone other than Lawson committed

the charged offense. The three extraneous burglaries and the charged offense

occurred during the daytime hours, in the same area, and close in time. The

extraneous offenses are sufficiently similar to the charged offense; thus, the trial

court did not abuse its discretion by admitting the three burglaries into evidence for

purposes of identity under Rule 404(b). See Tex. R. Evid. 404(b); see also Lane,

933 S.W.2d at 519.

      Even relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

misleading the jury, or by considerations of undue delay or needless presentation

of cumulative evidence. Tex. R. Evid. 403. A Rule 403 analysis balances:

      (1) the inherent probative force of the proffered item of evidence
      along with (2) the proponent’s need for that evidence against (3) any
      tendency of the evidence to suggest decision on an improper basis, (4)
      any tendency of the evidence to confuse or distract the jury from the
      main issues, (5) any tendency of the evidence to be given undue
      weight by a jury that has not been equipped to evaluate the probative
      force of the evidence, and (6) the likelihood that presentation of the
      evidence will consume an inordinate amount of time or merely repeat
      evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). Rule 403

envisions exclusion of evidence only when there is a clear disparity between the

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degree of prejudice of the extraneous offense and its probative value. Hammer v.

State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). Rule 403 favors the admission

of relevant evidence and presumes that relevant evidence will be more probative

than prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007).

      In this case, evidence that Lawson burglarized the Boyett, Hancock, and

Havens homes was probative of Lawson’s identity as the person who burglarized

the Huber home. Because there were no witnesses to the Huber burglary or

physical evidence linking Lawson to the burglary and because Lawson elicited

evidence suggesting that he was not the person who committed the burglary, the

trial court could have determined that the State had a considerable need for

evidence of the Boyett, Hancock, and Havens burglaries. Testimony regarding the

three extraneous burglaries did not consume an inordinate amount of time during

trial. The State focused the majority of its closing argument on the evidence

establishing that Lawson burglarized the Huber home and explained that the

extraneous burglaries helped to identify Lawson as the burglar of the Huber home.

Additionally the trial court’s limiting instruction, which restricted the jury’s

consideration of the extraneous burglaries to identity and for no other purpose,

minimized any impermissible inference of character conformity. See Lane, 933

S.W.2d at 520.

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      Finding no clear disparity between the degree of prejudice of the three

extraneous burglaries and their probative value, we hold that the trial court did not

abuse its discretion by concluding that the probative value of the extraneous-

offense evidence was not outweighed by the danger of unfair prejudice. See

Hammer, 296 S.W.3d at 568. We overrule Lawson’s sole issue and affirm the trial

court’s judgment.

      AFFIRMED.




                                             ________________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice


Submitted on July 16, 2013
Opinion Delivered September 4, 2013
Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.




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