                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-359-CR


THOMAS LYNN CURRY                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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     A jury convicted Appellant Thomas Lynn Curry of delivery of between

four and two-hundred grams of a controlled substance, and the trial court

sentenced him to twenty-five years’ confinement.     In a single point, Curry

argues that the trial court abused its discretion by admitting in evidence

unadjudicated extraneous offenses. We will affirm.



     1
         … See Tex. R. App. P. 47.4.
      On October 11, 2006, Officer Alexander Simmons of the Arlington Police

Department received information that an individual going by the name of “T”

was possibly selling narcotics. Officer Simmons called a telephone number,

spoke to “T,” and told “T” that he wanted to purchase a “quarter” of crack

cocaine. “T” called Officer Simmons back ten minutes later and told Officer

Simmons to meet him at the Budget Suites in Arlington. Officer Simmons went

to the motel, met “T” in the parking lot, and accompanied him to one of the

motel rooms. Inside the room, “T” gave Officer Simmons an off-white, rock-

like substance that was subsequently tested and determined to be cocaine. “T”

weighed the substance on a digital scale, and Officer Simmons paid “T” $175.

Officer Simmons was in the motel room with “T” for approximately four to five

minutes and was able to get a good look at “T.”

      Officer Simmons did not intend to arrest “T” on October 11, 2006; he

only sought to establish “some type of rapport” with him so that he could

purchase additional, larger quantities of narcotics from him at a later time.

After the initial transaction, however, Officer Simmons was unable to make any

other “buys” from “T.”    Therefore, his next step was to determine “T’s”

identity.

      On October 17, 2006, Officer Simmons saw “T” out front of the

Arlington Inn, which is located about two to three blocks from the Budget

                                      2
Suites where the October 11, 2006 transaction occurred. Officer Simmons

called for a patrol officer to come and identify “T.” Officer Norman Nillpraphan

arrived and made contact with “T.” “T” told Officer Nillpraphan that he was

not supposed to be on the property and that he had to leave, and he admitted

that he had a criminal trespass warning. Officer Nillpraphan confirmed that “T”

had a criminal trespass warning, and he arrested “T” after a backup officer

arrived.   While performing a search incident to arrest, Officer Nillpraphan

discovered an off-white, rock-like substance in “T’s” pocket that was

subsequently tested and determined to be cocaine.

      Officer Nillpraphan informed Officer Simmons that “T” had been identified

and arrested. Officer Simmons obtained “T’s” name, retrieved a “jail folder”

and photograph related to the name, and recognized the individual in the

photograph as the same person who delivered cocaine to him on October 11,

2006. At trial, Officer Simmons identified “T” as Curry.

      In his sole point, Curry argues that the trial court abused its discretion by

admitting in evidence the unadjudicated October 17, 2006 extraneous cocaine

possession and trespass offenses.        Arguing that the introduction of the

extraneous offenses served merely to try him as a criminal generally, Curry

challenges the State’s contention at trial that the offenses were admissible to

establish his identity.

                                        3
      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); Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App.

1990) (op. on reh’g). This rule reflects the well-established principle that a

defendant should not be tried for some collateral crime or for being a criminal

generally. Soffar v. State, 742 S.W.2d 371, 377 (Tex. Crim. App. 1987).

Evidence of prior criminal conduct may, however, be admissible if it is logically

relevant to prove some other fact, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.

R. Evid. 404(b); Johnston v. State, 145 S.W .3d 215, 219 (Tex. Crim. App.

2004). For extraneous offense evidence to be admissible under rule 404(b), the

evidence must be relevant to a fact of consequence in the case apart from its

tendency to prove conduct in conformity with character.          Johnston, 145

S.W.3d at 220.     Evidence is relevant if it has any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence. Tex. R.

Evid. 401.

      An extraneous offense may be admissible to prove identity only if the

identity of the perpetrator is at issue in the case. Page v. State, 213 S.W.3d

332, 336 (Tex. Crim. App. 2006). Identity can be raised by cross-examination,

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such as when the identifying witness is impeached on a material detail of the

identification. Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004).

When the State uses an extraneous offense to prove identity by comparing

common characteristics of the crime, the extraneous offense must be so similar

to the charged offense that it illustrates the defendant’s “distinctive and

idiosyncratic manner of committing criminal acts.” Page, 213 S.W.3d at 336;

Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996); see also Segundo

v. State, No. AP-75604, 2008 WL 4724093, at *4–5 (Tex. Crim. App. Oct.

29, 2008). The evidence must demonstrate a much higher degree of similarity

to the charged offense than extraneous acts offered for other purposes, such

as intent. Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993).

      In reviewing the decision to admit extraneous offense information,

appellate courts should take into account the specific characteristics of the

offenses and the time interval between them. Thomas v. State, 126 S.W.3d

138, 144 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).          Sufficient

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

of committing the offense.    Id.; see also Lane, 933 S.W.2d at 519.      The

extraneous offense and the charged offense can be different offenses so long

as the similarities between the two offense are such that the evidence is

relevant. Thomas, 126 S.W.3d at 144.

                                      5
      We will not disturb a trial court’s evidentiary ruling absent an abuse of

discretion.   Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.

2007).   As long as the trial court’s ruling is within the zone of reasonable

disagreement and is correct under any theory of law, it must be upheld. Id.

      Here, Curry’s identity as the individual responsible for delivering cocaine

to Officer Simmons on October 11, 2006, was not only at issue in the case, it

was also Curry’s primary defensive theory. Although Officer Simmons testified

that he was able to get a good look at Curry in the motel room, he agreed

during cross-examination that “it was [his] intent to make a buy and not really

observe this person and identify them” and that he was not “in there to really

observe the guy.”    Curry questioned Officer Simmons about Curry’s attire.

Officer Simmons said that he did not notice anything unusual about Curry at the

time of the delivery and that he was not focusing on any skin discoloration,

noticeable scars, or missing teeth. Curry pointed out that Officer Simmons

listed in his report of the October 11, 2006 transaction that Curry stood 5’10”

tall and weighed approximately 175 pounds but that Officer Simmons listed in

a subsequently prepared arrest warrant affidavit that Curry stood 5’11” tall and

weighed approximately 230 pounds, a weight difference of fifty-five pounds.

Curry’s closing argument primarily focused on his defensive theory of mistaken

identity. He concluded his argument with the following:

                                       6
      What we’ve got here is just a case of mistaken identity. Officer
      Simmons was out doing his job, but police officers make mistakes.
      And this is the kind of mistake that can cost a man his freedom.
      You need to be sure beyond a reasonable doubt that it was Mr.
      Curry that day on October the 11th, and that’s why we’re asking
      you to find him not guilty.

      The October 11, 2006 delivery offense and the October 17, 2006

possession offense are different offenses, but there are similarities between the

two   demonstrating    the   latter’s   relevance   to   show   Curry’s   identity.

Geographically, the offenses occurred in close proximity to one another. Officer

Simmons testified that the Budget Suites motel is at most about two to three

blocks from the Arlington Inn or about a “good five-minute walk.” The area

where both motels are located is “a highly, highly, highly documented area

where narcotics are being sold” and delivered to. Temporally, the offenses

occurred within a relatively short period of time. Curry delivered cocaine to

Officer Simmons on October 11, 2006, and Officer Nillpraphan discovered

cocaine in Curry’s pocket on October 17, 2006, just six days later.          Both

offenses involved the same narcotic; cocaine. Both offenses also occurred at

motels. Furthermore, when Officer Simmons arrived at the motel on October

11, 2006, Curry approached his vehicle, meeting him outside in the parking lot.

On October 17, 2006, Officer Simmons observed Curry outside of the Arlington

Inn “just walking back and forth.”


                                         7
      Considering this evidence, sufficient similarities existed between the

delivery offense and the extraneous possession offense such that the

extraneous offense was relevant to identify Curry as the individual who

delivered cocaine to Officer Simmons.       Curry’s possession of cocaine thus

made more probable his identity as the individual responsible for delivering

cocaine to Officer Simmons, which is a fact of consequence in the case apart

from its tendency to prove conduct in conformity with character. See Tex. R.

Evid. 403; Johnston, 145 S.W.3d at 220. Accordingly, we hold that the trial

court did not abuse its discretion by admitting evidence of the October 17,

2006 cocaine possession extraneous offense.

      Considering the entire record, to the extent the trial court may have

abused its discretion by admitting the trespass violation, we hold that any such

error was harmless. See Tex. R. App. P. 44.2(b) (providing that we disregard

error unless it affected appellant’s substantial rights).

      Curry also argues that the trial court abused its discretion by admitting

the extraneous offense evidence because the evidence’s probative value is

substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid.

403. Curry, however, did not assert a rule 403 objection to the evidence when

he raised the extraneous offense matter before the trial court. His only basis

for asserting this argument seems to be the trial court’s comment when making

                                        8
its ruling on the admissibility of the extraneous offenses that “the probative

value outweighs the prejudicial effect on this.” 2 A trial court need not engage

in a rule 403 balancing test unless the opponent of the evidence asserts a rule

403 objection. See Feldman v. State, 71 S.W.3d 738, 754 (Tex. Crim. App.

2002); Montgomery, 810 S.W.2d at 388. The trial court’s comment utilizing

common rule 403 verbiage was not sufficient to raise and preserve Curry’s rule

403 argument that he now asserts on appeal.             See Tex. R. App. P.

33.1(a)(1)(A). Accordingly, we overrule Curry’s sole issue and affirm the trial

court’s judgment.




                                           PER CURIAM

PANEL: HOLMAN, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 18, 2008




      2
      … Curry states, “The trial court, having interjected the balancing test for
admission of relevant, but prejudicial evidence into the record, [Curry] will
address admission of the offenses under [rule of evidence 403].”

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