Opinion filed March 20, 2014




                                     In The


        Eleventh Court of Appeals
                                  __________

                               No. 11-12-00110-CR
                                  __________

                ROBERT STEVEN DUDLEY, Appellants
                                       V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 244th District Court
                             Ector County, Texas
                       Trial Court Cause No. C-37,722

                     MEMORANDUM OPINION
      The jury found Robert Steven Dudley guilty of aggravated robbery. After it
found “true” as to one enhancement paragraph, the jury assessed Appellant’s
punishment at confinement for ninety-nine years. The trial court sentenced him in
accordance with the verdict. In one issue, Appellant challenges the trial court’s
admission of extraneous offense evidence because identity was not yet at issue and
because the extraneous robbery was not sufficiently similar to constitute a
signature. We affirm.
      Appellant was indicted for the aggravated robbery of Michelle Perkins, a
clerk at a Chevron convenience store in Odessa. The robbery occurred on or about
December 2, 2008. Perkins testified that she was preparing to close the store
around 10 p.m. and had gone to the back of the store to wash some pots and pans
when she heard the door beeper. Two men had entered the store, and when Perkins
went to the back of the store to turn off the water, she heard the door beeper again.
A third man had entered the store. All three men were wearing hoodies, and they
separated from each other after they were inside the store.
      Perkins began to feel nervous because the men were acting suspiciously.
Perkins started toward the door to go outside and smoke a cigarette. At the same
time, one of the men went to the counter and asked Perkins for cigarettes; she went
behind the counter to get the cigarettes. After she got the cigarettes, she turned
around to ask the man for his ID, and he was pointing a handgun at her. He
ordered her to “open it.” Perkins took the drawer out of the cash register, set it on
the counter, and turned away. She heard the man take the money and leave. As he
was walking out the door, he asked Perkins, “[I]s that all of it?” and when Perkins
indicated that it was, the men left.
      The store manager turned the store’s security surveillance footage over to
the police.   Detective Michael Liverett of the Odessa Police Department was
assigned to investigate the robbery. Detective Liverett obtained a snapshot of the
robber’s face from the surveillance footage and showed the photograph to other
officers.   Sergeant Robin Smith immediately recognized the robber and told
Detective Liverett that the robber was Appellant. Corporal Detective Afton White
of the Odessa Police Department also identified the robber as Appellant.

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      Detective Liverett questioned Appellant. Although he never admitted that
he committed the robbery, Appellant asked whether the detective could make a
deal with the district attorney in exchange for the names of the accomplices. After
he talked to Appellant, Detective Liverett showed Perkins a photo array, and she
selected Appellant’s picture from the lineup as the person who robbed her at
gunpoint.
      During Appellant’s trial, the trial court admitted evidence that Appellant had
committed another robbery on November 26, 2008, at the Smoker’s Outlet. The
State offered the extraneous offense for the purpose of proving identity.
      On the date of the robbery at Smoker’s Outlet, Megan Nicholas was training
a new cashier, Carla Harris. A man came into the store around 10 p.m. to purchase
“rolling papers.” While the man was purchasing “rolling papers,” Nicholas went
outside to meet the store manager in the parking lot. While Nicholas was outside
and after the man paid for his purchase, he pulled out a gun, aimed it at Harris, and
told her to “give it all to me.” Harris began backing away from the counter, and
the robber went to the cash register and fought with her.         Harris yelled for
Nicholas, and Nicholas ran inside and pushed the panic button.              The robber
grabbed money from the register and fled.         Appellant was convicted of the
Smoker’s Outlet robbery.
      In his sole issue, Appellant makes two complaints about the admissibility of
the prior robbery conviction under TEX. R. EVID. 404(b). Appellant contends that
the trial court erred when it prematurely admitted the extraneous offense evidence
during the State’s case-in-chief because identity was not then an issue in the case.
The State argues that “Appellant opened the door to identity prior to the admission
of   the    extraneous robbery”    during his     cross-examination    of     Sergeant
Matt Davidson.



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      We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim.
App. 2009). We will reverse a trial court’s ruling only if it is outside the “zone of
reasonable disagreement.” Id.
      The general rule is that a defendant is to be tried only for the offense
charged, not for any other crimes or for being a criminal generally. Segundo v.
State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008).            However, evidence of
extraneous acts of misconduct may be admissible if the uncharged act is relevant to
a material issue in the case and the probative value of that evidence is not
significantly outweighed by its prejudicial effect. Id. Although not an exclusive
list, some of the exceptions to the general rule include “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.” TEX. R. EVID. 404(b).
      “An extraneous offense may be admissible to show identity only when
identity is at issue in the case.” Page v. State, 213 S.W.3d 332, 336 (Tex. Crim.
App. 2006).    The issue of identity can be raised by the defense on cross-
examination when the identifying witness is impeached on a material detail of the
identification, the conditions surrounding the identification, or an earlier
misidentification. Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985).
If an extraneous offense is improperly admitted during the State’s case-in-chief,
“subsequently admitted evidence can render the error harmless.” Id. If the defense
raises the issue of identity after the evidence was erroneously admitted, “the
extraneous offense becomes admissible and the earlier error becomes harmless. Id.
      During cross-examination of the witnesses, Appellant challenged the
eyewitness’s description based on race, hair color, facial hair, and the type of
weapon. Perkins told Sergeant Davidson that the suspects were a black male and
two Hispanic males.      Although Appellant is white, Perkins testified that he

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appeared to be Hispanic based on his dark facial hair.          In the photo array,
Appellant had facial hair. Appellant had facial hair at the time he was interviewed
by detectives, and all of the suspects in the photo array had facial hair. Perkins had
not told Sergeant Davidson that the suspect had facial hair. Defense counsel asked
Perkins several times why she had changed her description of the race of the
suspects and questioned her experience and ability to identify the weapon. When
defense counsel questioned Perkins about how she identified Appellant through a
photo lineup, defense counsel stated, “I’m not questioning you [about whether] you
were held up, I’m questioning whether or not your identification is correct.”
      During closing argument, defense counsel argued that Perkins told
Sergeant Davidson that there were two black males and one Hispanic male, but
after choosing Appellant from a photo array and learning that he was white, she
changed her story. Counsel further argued that he could tell which jurors were
Hispanic and that Perkins should be able to identify a Hispanic person from her
experience working at a convenience store. Appellant’s trial counsel also argued
that the weapon recovered in a search of Appellant’s home was not the same
weapon used in the robbery. Additionally, defense counsel also challenged the
identity of Appellant as the robber depicted in the surveillance photos from the
robbery at the Smoker’s Outlet. His challenge was based upon the observation that
the suspect had blond hair and no facial hair.
      Appellant also vigorously challenged the photo array.         Defense counsel
attempted to establish that Detective Liverett showed Perkins a large picture of
Appellant before showing her the photo array, but Perkins clarified on redirect
examination that Detective Liverett showed her the photo array first. During
closing argument, defense counsel read back Perkins’s testimony to the jury and
then argued that “[Detective] Liverett lied to you when he said that he did not do
anything to try to get Ms. Perkins to identify Mr. Dudley.”

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      All of the foregoing leads us to conclude, and we do conclude, that
Appellant raised the issue of identity.
      We now address Appellant’s second contention that the extraneous offense
is not sufficiently identical to the charged offense to allow for its admission.
“Merely raising the issue of identity does not automatically render the extraneous
evidence admissible.” Page, 213 S.W.3d at 336. When an extraneous offense is
introduced to prove identity, there must be some distinguishing characteristics
common to both the extraneous offense and the charged offense. Martin v. State,
173 S.W.3d 463, 468 (Tex. Crim. App. 2005). To be admissible for this purpose,
the common characteristics of the charged offense and the extraneous offense must
be so unusual that the characteristics act as the defendant’s “signature.” Taylor v.
State, 920 S.W.2d 319, 322 (Tex. Crim. App. 1996). The “signature” must be
evident when we compare the circumstances in both cases. Bishop v. State, 869
S.W.2d 342, 346 (Tex. Crim. App. 1993). “No rigid rules dictate what constitutes
sufficient similarities; rather, the 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.”
Segundo, 270 S.W.3d at 88.
      As an initial matter, we must first address the arguments of both parties
related to what evidence properly and sufficiently connects the two offenses in this
case. Appellant argues that the mere use of a firearm is too common to use as a
factor to connect the offenses. Appellant relies on Ford v. State, 484 S.W.2d 727
(Tex. Crim. App. 1972), to support his contention. In Ford, the court held that the
extraneous offense evidence should not have been admitted and reasoned that
“[w]hat must be shown to make the evidence of [an] extraneous crime admissible
is something that sets it apart from its class or type of crime in general, and marks
it distinctively in the same manner as the principal crime.” 484 S.W.2d at 730

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(emphasis added). The court explained that “a different result might be reached” if
there had “been evidence that the same pistol had been used in both robberies.” Id.
      Although Perkins identified one of the BB guns that had been recovered
from Appellant’s vehicle as similar to the one used in the charged offense,
Nicholas and Harris were not asked whether the BB gun was similar to the gun
used in the Smoker’s Outlet robbery. We agree with Appellant that the fact that
pistols were used in both crimes is not a distinguishing characteristic that supports
admissibility because there is no evidence tying the gun to both robberies. See id.
      The State argues that the robberies “were in close proximity to one another.”
The only evidence in the record that indicates the geographic relation between the
robberies is testimony that the detectives were investigating “robberies committed
in the area.” But no one testified that the stores were in the same neighborhood.
      The State argues that the two stores are 1.43 miles apart “according to the
MapQuest.com.” However, this evidence is not in the record. An appellate court
may take judicial notice for the first time on appeal. Hayden v. State, 155 S.W.3d
640, 647 (Tex. App.—Eastland 2005, pet. ref’d); see also TEX. R. EVID. 201(f).
“To be judicially noticed, adjudicative facts must be relevant to the ultimate matter
in dispute, but not be the subject of any controversy themselves.” Kubosh v. State,
241 S.W.3d 60, 64 (Tex. Crim. App. 2007) (citing Watts v. State, 99 S.W.3d 604,
610 (Tex. Crim. App. 2003)). We take judicial notice that the extraneous robbery
occurred 1.43 miles from the charged robbery in this case. We agree with the State
that the close proximity of the stores should be considered when determining
whether the offenses are sufficiently connected. See Chavez v. State, 794 S.W.2d
910, 914 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) (considering that “the
sexual assaults all occurred in Rosenberg, Texas,” as a factor supporting the
admissibility of extraneous offenses to prove identity).



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      The State also argues that both “robberies were of similar ‘convenience
store’ businesses.”    At trial, Appellant introduced evidence that a lot of
convenience stores in Odessa are robbed, and he argued that there is nothing
unusual about a convenience store robbery.
      While we agree that this fact alone would not constitute a “signature,” the
fact that they were both convenience store robberies, rather than one being a bank
robbery or a residential burglary, can be considered as a factor in whether there
was a common mode in the commission of the offenses. See Ransom v. State, 503
S.W.2d 810, 813 (Tex. Crim. App. 1974) (distinguishing robberies on a residential
street from robberies at “various retail stores” or “nightclubs” because the exact
modus operandi was not repeated).
      Here, both robberies were of convenient stores, and there were other similar
characteristics. When Appellant and his two accomplices entered the Chevron
station around 10 p.m., Appellant approached the counter and asked the clerk for a
pack of cigarettes. When the clerk turned around to retrieve them, Appellant
pulled out his gun, aimed it at her, and said, “[O]pen it.” After taking the money,
Appellant asked, “[I]s that all of it?” and left. Similarly, when Appellant went into
Smoker’s Outlet, he purchased “rolling papers.” When the second clerk exited the
store as he was making his purchase, Appellant pointed his gun at the remaining
clerk and told her to “give it all to me.” As Appellant was taking the money from
the drawer of the cash register, the other clerk returned, and Appellant fled. We
also recognize that there were some differences in the mode of commission,
namely that Appellant acted alone in the extraneous robbery but had two
accomplices in the charged offense.
      Appellant concedes that the offenses are similar in that they occurred six
days apart and in that both suspects wore a hoodie, but he argues that these two
facts alone do not sufficiently connect the offenses.

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      After a review of the record, we conclude that the following facts are similar
between the charged offense and the extraneous offense: (1) the robberies occurred
six days apart; (2) both robberies occurred shortly after 10 p.m.; (3) the robberies
occurred in the same area; both businesses were convenience stores; (4) the
suspects in both robberies were wearing the same type of zip-up hoodies; and
(5) both robberies occurred when only one clerk was present inside the store.
      Because Appellant raised the issue of identity and because of the similarities
between the offenses, we cannot conclude that the trial court’s ruling was outside
the zone of reasonable disagreement. In view of the record before us, we conclude
that the trial court did not abuse its discretion when it admitted the extraneous
offense evidence. Appellant’s sole issue on appeal is overruled.
      We affirm the judgment of the trial court.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE


March 20, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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