AFFIRMED; Opinion Filed July 10, 2013.




                                              In The
                                        Court of Appeals
                                 Fifth District of Texas at Dallas

                                        No. 05-12-00654-CR

                               ASHICK KATREL CROSS, Appellant
                                            V.
                                THE STATE OF TEXAS, Appellee

                          On Appeal from the 397th Judicial District Court
                                      Grayson County, Texas
                                  Trial Court Cause No. 060670

                                  MEMORANDUM OPINION
                               Before Justices Francis, Lang, and Evans
                                       Opinion by Justice Lang

       A jury convicted Ashick Katrel Cross of aggravated robbery and assessed punishment,

enhanced by a prior conviction, at life in prison. In a single issue, Cross complains of the

admission of third-party extraneous offense evidence. Finding no reversible error, we affirm the

trial court’s judgment.

                                        I.     BACKGROUND

       Determined to “make some money,” Cross and John Humbard drove to a Sam’s Club on

a Friday afternoon with the intent of committing robbery. There, they found Julie Simeroth

loading groceries into her car. Cross pulled up behind her in his car and asked her for directions

to a nearby town. Headed in the same direction, Simeroth asked if he wanted to follow her, and

Cross said yes. Instead of waiting for Simeroth to get in her car to follow her, however, Cross
got out of his car, pushed Simeroth, struck her with a gun, and stole her purse. He then fled in

his car with Humbard.

       Detectives were led to Humbard and Cross based upon purchases made on Simeroth’s

credit card at a nearby Walmart shortly after the robbery, surveillance video from the Sam’s Club

parking lot, and Simeroth’s description of the car Cross was driving. Both Humbard and Cross

were charged with aggravated robbery, but were tried separately.

               II.      THIRD-PARTY EXTRANEOUS OFFENSE EVIDENCE

       Cross’s sole issue stems from the admission of testimony, at the guilt phase of trial, that

Humbard attempted to cash a check stolen from Simeroth within a few hours of the robbery.

Cross asserts the trial court abused its discretion in admitting this testimony “under timely

objection pursuant to rule 404(b) of the Texas Rules of Evidence.”

                                        A. Applicable Law

   Evidence of extraneous crimes, wrongs, or acts is generally not admissible at the guilt phase

of trial. See TEX. R. EVID. 404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).

Extraneous offense evidence may be admissible, though, when it has relevance separate from

character conformity. See TEX. R. EVID. 404(b); Devoe, 354 S.W.3d at 469. If the State intends

to introduce such evidence at trial, it must, upon timely request, give the accused reasonable

notice in advance of trial. See TEX. R. EVID. 404(b). No notice is required, however, if the

evidence arises from the same transaction. McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim.

App. 2005). Same-transaction contextual evidence is evidence of extraneous matters that are so

intertwined with the State’s proof of the charged crime that together “they form an indivisible

criminal transaction, and full proof by testimony, . . . , of any one of them cannot be given

without showing the others.” Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (quoting

Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)).          Because third party acts may

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reflect on the character of the accused, rule 404(b) applies to the conduct of third parties in

addition to the conduct of the accused. Castaldo v. State, 78 S.W.3d 345, 348-49 (Tex. Crim.

App. 2002).

                                       B. Standard of Review

       A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion.

Devoe, 354 S.W.3d at 469. No abuse of discretion will be found where the ruling falls within the

zone of reasonable disagreement. Id. A party preserves a complaint for appellate review by

specifically and timely objecting at the trial court. TEX. R. APP. P. 33.1; Lovill v. State, 319

S.W.3d 687, 691-92 (Tex. Crim. App. 2009) (“A complaint [is] not preserved if the legal basis of

the complaint raised on appeal varies from the complaint made at trial.”).

                                  C. Application of Law to Facts

       The record reflects that, before the testimony of Humbard’s attempt to cash Simeroth’s

check was elicited, the following exchange occurred at the bench:

[DEFENSE COUNSEL]:            Your honor, I think we’re going to go into the attempt to cash a
                              check. I was not given notice of that extraneous offense.

[PROSECUTOR]:                 Same context, 404(b), it’s all contained in the offense report. It’s
                              part of continuing criminal – credit card abuse. It’s an indicted
                              case. It’s all contained in the report, same context.

[THE COURT]:                  Do you have the report?

[DEFENSE COUNSEL]:            Uh-huh.

[PROSECUTOR]:                 I think most of the acts involve Mr. Humbard more than anything.

[THE COURT]:                  So what’s the check cashing?

[PROSECUTOR]:                 They were taking Ms. Simeroth’s checkbook. Ashick [sic]
                              attempted to cash a $1,500 check in her name.

[THE COURT]:                  It’s in the report?

[PROSECUTOR]:                 It’s going to establish she knew it was Julie Simeroth.

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[THE COURT]:                    She knew?

[PROSECUTOR]:                   Yes, sir.

[THE COURT]:                    I’ll let it in.

Cross asserts in his brief that his trial objection was “two fold. First, a straight forward 404(b)

objection was made. Second, trial counsel objected that no proper notice was provided pursuant

to the State’s Notice of Intent to Introduce Extraneous Matter.” With respect to his “straight

forward 404(b) objection,” Cross contends the State did not “sufficiently articulate a specific

reason a 404(b) exception applied.” With respect to notice, Cross contends that, although the

State gave him two written “notice[s] of intent to introduce extraneous offenses,” neither one

specifically listed the check-cashing incident. Further, he contends that the police report was not

“sufficient notice.” The State responds that Cross “waived any substantive objection to [the]

extraneous offense under 404(b)” because his only objection was to notice. Additionally, the

State argues that Cross’s complaint as to notice is without merit because he acknowledged

receiving the offense report.

       We agree with the State that Cross waived any “straight forward,” “substantive”

objection to the admission of testimony concerning the check-cashing incident because he did

not make that objection at trial. See TEX. R. APP. P. 33.1. We also agree with the State that

Cross’s complaint as to notice is without merit because he acknowledged receiving the report

which included the check-cashing incident.           Although Cross argues the report was not

“sufficient,” he did not make that argument at trial and cannot raise it for the first time on appeal.

See id. Similarly, although he complains the notices of intent the State provided him were not

“specific,” he is raising that issue for the first time on appeal. See id. Finally, as the State argued

at trial, the check-cashing incident was same-transaction contextual evidence.              See, e.g.,

Maranda v. State, 253 S.W.3d 762, 766-67 (Tex. App.—Amarillo 2007, pet. ref’d, untimely

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filed) (concluding evidence of appellant’s use of inhaled intoxicant, within two hours after

robbery in which he stole cleaner which could be used as inhaled intoxicant, was same

transaction contextual evidence). As such, no notice was required. See McDonald, 179 S.W.3d

at 577. We resolve Cross’s sole issue against him.

                                     III.      CONCLUSION

       We affirm the trial court’s judgment.




                                                     /Douglas S. Lang/
                                                     DOUGLAS S. LANG
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47
120654F.U05




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

ASHICK KATREL CROSS, Appellant                        On Appeal from the 397th Judicial District
                                                      Court, Grayson County, Texas
No. 05-12-00654-CR         V.                         Trial Court Cause No. 060670.
                                                      Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                          Francis and Evans participating.

       Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.


Judgment entered this 10th day of July, 2013.



                                                      /Douglas S. Lang/
                                                      DOUGLAS S. LANG
                                                      JUSTICE




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