AFFIRM; and Opinion Filed January 13, 2014.




                                         S
                                Court of Appeals
                                                In The


                         Fifth District of Texas at Dallas
                                      No. 05-12-01187-CR
                                      No. 05-12-01189-CR
                         VANCE LEMORRIS THOMAS, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 7
                                   Dallas County, Texas
                    Trial Court Cause Nos. F10-42399-Y & F10-42400-Y

                                          OPINION
                           Before Justices O'Neill, Myers, and Brown
                                   Opinion by Justice Brown
       Vance Lemorris Thomas appeals two convictions for aggravated robbery with a deadly

weapon. Appellant pleaded not guilty and was tried by a jury. The jury found appellant guilty of

both offenses and assessed his punishment at ten years’ imprisonment in each case. In four

points of error, appellant contends that the trial court erred in admitting extraneous offense

evidence during the guilt/innocence phase of trial and during the punishment phase, and that

there is insufficient evidence in the record to support the court’s orders that appellant pay court

costs. We affirm the trial court’s judgments.

       The evidence shows that at about 10:30 p.m. on October 12, 2010, Kirk Marez met his

friend Scott Simpson at Simpson’s gated apartment complex in Mesquite. Simpson waited near

the entrance in his car to let Marez’s car in, and they both drove through the complex to
Simpson’s apartment. Marez and Simpson saw a “bluish green” or “greenish” car with two men

in it and thought the men looked out of place. Marez and Simpson parked near Simpson’s

apartment and got out of their cars. As they were walking up to the apartment, the greenish car

pulled around the corner. A man jumped out of the passenger side, pointed a gun at Marez and

Simpson, and demanded their money. He also demanded Marez’s car. Marez and Simpson gave

the man their keys and cash. The driver of the car was yelling to the gunman to “shoot them”

and “kill them.” The gunman got in Marez’s car and followed the greenish car out of the

apartment complex.

       A few weeks later, Mesquite Police Officer Jerry Walzel stopped a car after it committed

multiple traffic offenses. The car matched the description of one he had been told to be on the

lookout for and matched the description of the car seen by Marez and Simpson. Officer Walzel

arrested the driver of the vehicle, appellant, for the traffic offenses. Both Marez and Simpson

picked appellant out of a photo lineup as the driver of the greenish car on the night they were

robbed.

       Detective Don Phillips interviewed appellant at the police station on the night of his

arrest. During the first part of the interview, appellant denied having anything to do with the

aggravated robberies of Marez and Simpson. Appellant gave Detective Phillips consent to

search his car and apartment. Appellant went with Phillips to his apartment while it was

searched, and then they returned to the police station to continue the interview. During the

second part of the interview, appellant indicated he took part in the aggravated robberies in order

to pay his rent. Both of Detective Phillips’s interviews with appellant were videotaped and

played in part for the jury. Phillips also testified that while he was at appellant’s apartment with

him, appellant said that he had not robbed anyone, but his brother had and that he drove his

brother to commit the offenses.

                                                –2–
          Appellant testified in his own defense. He admitted telling Detective Phillips that he was

involved in these robberies, stating, “I was telling him what he wanted to hear.” He testified he

did this because he was scared and intimidated. According to appellant, Phillips threatened to

put additional charges on him. Specifically, Detective Phillips told appellant to say he did it or

Phillips had eight or nine other robberies he would pin on him.                                           Appellant testified that

everything he told Phillips in the second interview was a lie and testified that he had nothing to

do with the robberies of Marez and Simpson.

          In his first point of error, appellant contends the trial court erred in admitting evidence

during the guilt/innocence phase of trial of an extraneous aggravated robbery.                                                 Appellant

complains about the following exchange during his cross-examination:

          Q. Right. [Detective Phillips] told you and you even admitted that there was a
          white girl that you and your brother robbed on a different day. Right?

          A. If I said it, which I don’t recall saying it, but it was, it was coerced.

          Q. So when the detective said, so tell me about the other one. You said it was a
          white girl, but it’s a blur. I was driving my brother. I didn’t get out, but he did.
          You don’t remember that part of the video? 1

          A. No.

          Q. Do you remember when he said, the detective said, why did you pick her?
          You said, I didn’t pick her. I just drive the car. Do you remember saying that?

          A. No, ma’am.

Appellant did remember saying he did not take “the white girl’s” phone. Appellant asserts the

trial court erred because there was no legitimate purpose for this evidence and it served only to

show appellant’s propensity to commit crimes.

          Defense counsel did not object when the State cross-examined appellant about the

extraneous offense. Before trial, appellant filed a motion in limine in each case asking the court

     1
       The State did not play for the jury the portion of the videotaped interview that contained appellant’s admission that he committed this
extraneous aggravated robbery.



                                                                    –3–
to instruct the prosecution not to mention any extraneous offenses and asking for a hearing

outside the presence of the jury on the admissibility of any such offenses. The trial court granted

appellant’s motions. The record shows that during trial several off-the-record discussions took

place, presumably regarding the extraneous offense evidence.                                            One of these off-the-record

discussions took place shortly before the testimony quoted above. Not until the jury began its

deliberations on appellant’s guilt or innocence did appellant’s counsel attempt to make a record

of what was discussed off the record. To preserve a complaint for appellate review, the record

must show that a party presented to the trial court a timely objection stating the specific grounds

for the desired ruling. See TEX. R. APP. P. 33.1(a). An off-the-record objection does not

preserve a complaint for our review. Hullaby v. State, 911 S.W.2d 921, 926 (Tex. App.—Fort

Worth 1995, pet. ref’d). Because appellant’s actual objection to this evidence, as well as the

court’s ruling, was made during an unrecorded bench conference, we conclude appellant has

waived this point of error. 2

           Even if we consider the merits of appellant’s point, his argument is not valid. 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). It may, however, be admissible for

other purposes. Id. Rebuttal of a defensive theory is one of the other purposes for which

extraneous offense evidence may be admitted under rule 404(b). Williams v. State, 301 S.W.3d

675, 687 (Tex. Crim. App. 2009). Further, otherwise inadmissible extraneous offense evidence

may be admissible if a party opens the door. Id.; Hayden v. State, 296 S.W.3d 549, 554 (Tex.

Crim. App. 2009). When the defendant leaves a false impression with the jury, this opens the

door for the State to introduce extraneous offense evidence to correct the false impression.

     2
        We recognize that it is not necessary to repeat an objection before the jury if a trial court hears objections outside the jury’s presence and
rules that the evidence is admissible. See TEX. R. EVID. 103(a)(1); Geuder v. State, 115 S.W.3d 11, 14 (Tex. Crim. App. 2003); Martinez v. State,
98 S.W.3d 189, 193 (Tex. Crim. App. 2003). Here, however, the objections were not only made outside the presence of the jury, they were also
made off the record.



                                                                        –4–
Sandoval v. State, 409 S.W.3d 259, 302 (Tex. App.—Austin 2013, no pet.). A trial court’s ruling

on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard.

Williams, 301 S.W.3d at 687.

        Here, appellant testified and denied committing the aggravated robberies of Marez and

Simpson. He attempted to explain why he admitted committing these offenses to Detective

Phillips. His explanation was that he did so because he was afraid and intimidated. According

to appellant, Phillips told him to confess or he would pin other similar crimes on him.

Appellant’s testimony created the impression that he was coerced into falsely confessing to the

robberies of Marez and Simpson because he was afraid of being wrongly charged with other

offenses. Evidence that appellant committed a similar aggravated robbery and also confessed to

it serves to rebut appellant’s testimony that he was coerced into confessing to these robberies.

Through his testimony, appellant opened the door to this extraneous offense evidence. The trial

court did not abuse its discretion when it allowed this evidence. We overrule appellant’s first

point of error.

        In his second point of error, appellant contends the trial court erred in overruling his

objection to evidence during the punishment phase of two extraneous aggravated robbery

offenses. Appellant complains of further testimony about the aggravated robbery against “the

white girl,” now identified as Crystal Smith, and also evidence about the aggravated robbery of

“a Mexican man.” Appellant contends the evidence was inadmissible because the State did not

sufficiently prove that he was the person who committed these extraneous robberies.

        Again, we conclude appellant has waived this point of error. When Detective Phillips

testified during the punishment phase, the prosecutor asked him if he told appellant he was

looking at him for eight or nine robberies. At that point, defense counsel asked for a running

objection “pursuant to the previous sidebar.” The court asked if he wanted to make a new

                                              –5–
objection in the punishment phase or the exact same objection. Defense counsel asked for the

exact same objection, and the trial court overruled it. Thus, the record does not reflect the

specific objection appellant was making at this time. See TEX. R. APP. P. 33.1(a). It was not

until after Phillips and Smith testified that defense counsel sought to clarify the record as to what

he asked for in the off-the-record sidebar. Appellant’s earlier off-the-record objection does not

preserve this complaint for our review. See Hullaby, 911 S.W.2d at 926.

          Even if we consider the merits of appellant’s complaint about the extraneous offense

evidence admitted at punishment, we conclude the trial court did not abuse its discretion.

Detective Phillips testified that he was investigating eight or nine other robbery cases that

occurred in the same general area as these cases and had the same “MO.” He was only able to

file charges against appellant for the robberies of Marez and Simpson. The prosecutor asked

Phillips about an aggravated robbery against Crystal Smith. That robbery occurred four days

before the robberies of Marez and Simpson and in the same general vicinity. Detective Phillips

testified that, during the second part of their interview, appellant admitted that he had committed

an aggravated robbery against “a white girl.” Smith was unable to identify appellant in a lineup

and therefore no charges were filed. Smith testified that in October 2010, she parked at her

apartment complex in Mesquite at about 10 p.m. As she walked to her apartment, a blue car with

a man in it pulled up behind her. A different man put a gun near her forehead and demanded her

purse and money. After Smith gave the man with the gun her purse, he got in the passenger side

of the car, and the car sped out of the apartment complex.

          Detective Phillips also testified appellant admitted during their interview that he robbed a

Mexican man as well. During the search of appellant’s apartment, Phillips found Mexican

money. No charges were filed in this case because the complainant did not come to see the

police.

                                                  –6–
         Article 37.07 of the code of criminal procedure permits evidence during the punishment

phase of any matter the court deems relevant to sentencing. TEX. CODE CRIM. PROC. ANN. art.

37.07 § 3(a)(1) (West Supp. 2013). This includes evidence of an extraneous or crime or bad act

that is shown beyond a reasonable doubt by evidence to have been committed by the defendant

or for which he could be held criminally responsible. Id.; see Smith v. State, 227 S.W.3d 753

(Tex. Crim. App. 2007); Haley v. State, 173 S.W.3d 510, 514 (Tex. Crim. App. 2005). As

stated, we review a trial court’s decision as to the admissibility of extraneous offense evidence

under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App.

1996).

         Detective Phillips testified that appellant admitted to him that he robbed Smith and the

Mexican man. Evidence that appellant confessed to the extraneous offenses is sufficient to

support the conclusion that he committed the extraneous aggravated robberies beyond a

reasonable doubt. See McClure v. State, 269 S.W.3d 114, 118-19 (Tex. App.—Texarkana 2008,

no pet.); Malpica v. State, 108 S.W.3d 374, 378 (Tex. App.—Tyler 2003, pet. ref’d); Padron v.

State, 988 S.W.2d 344, 346 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (extrajudicial

confessions to extraneous offenses need not be corroborated at punishment phase of jury trial).

The trial court did not abuse its discretion in allowing this extraneous offense evidence. We

overrule appellant’s second point of error.

         In his third and fourth points of error, appellant contends there is insufficient evidence in

the records to support the trial court’s order that he pay $264 in court costs in each case. He

requests that we reform the judgments to delete the court costs because the clerk’s records do not

contain a bill of costs. Because the records did not contain cost bills, we ordered the Dallas

County District Clerk to file supplemental records containing a detailed itemization of the costs

assessed in these cases. See TEX. R. APP. P. 34.5(c)(1) (rules of appellate procedure allow

                                                 –7–
supplementation of clerk’s record if relevant item has been omitted). The itemization of costs

contained in the supplemental clerk’s records did not comply with the code of criminal

procedure. See TEX. CODE CRIM. PROC. ANN. arts. 103.001, 103.006 (West 2006). Accordingly,

we ordered second supplemental clerk’s records to be filed in compliance with articles 103.001

and 103.006, and the Dallas County District Clerk did so.

        Appellant has filed two objections to the second supplemental clerk’s records.        He

contends that (1) the unsigned, unsworn computer printouts of costs the second supplemental

records contain are not proper bills of costs, and (2) the computer printouts of court costs are

deficient because there is no indication they existed at the time the judgments were entered or

that they were brought to the trial court’s attention before costs were entered in the judgments.

This Court has previously addressed and rejected both of these arguments. See Coronel v. State,

No. 05-12-00493-CR, 2013 WL 3874446, at *4-5 (Tex. App.—Dallas July 29, 2013, pet. ref’d).

We overrule appellant’s objections to the second supplemental clerk’s records. Because the

records now contain cost bills supporting the assessment of costs in these cases, appellant’s

complaint that the evidence is insufficient is moot. See Franklin v. State, 402 S.W.3d 894, 895

(Tex. App.—Dallas 2013, no pet.). Accordingly, we overrule appellant’s third and fourth points

of error.

        We affirm the trial court’s judgments.




                                                       /Ada Brown/
                                                       ADA BROWN
                                                       JUSTICE

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

121187F.U05
                                                 –8–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

VANCE LEMORRIS THOMAS, Appellant                   On Appeal from the Criminal District Court
                                                   No. 7, Dallas County, Texas
No. 05-12-01187-CR        V.                       Trial Court Cause No. F10-42399-Y.
                                                   Opinion delivered by Justice Brown.
THE STATE OF TEXAS, Appellee                       Justices O'Neill and Myers participating.

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


Judgment entered this 13th day of January, 2014.




                                                   /Ada Brown/
                                                   ADA BROWN
                                                   JUSTICE




                                             –9–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

VANCE LEMORRIS THOMAS, Appellant                    On Appeal from the Criminal District Court
                                                    No. 7, Dallas County, Texas
No. 05-12-01189-CR        V.                        Trial Court Cause No. F10-42400-Y.
                                                    Opinion delivered by Justice Brown.
THE STATE OF TEXAS, Appellee                        Justices O'Neill and Myers participating.

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


Judgment entered this 13th day of January, 2014.




                                                   /Ada Brown/
                                                   ADA BROWN
                                                   JUSTICE




                                             –10–
