Opinion issued August 22, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-11-01086-CR
                           ———————————
                    JOHN LEONARD MORIN, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 339th District Court
                           Harris County, Texas
                       Trial Court Case No. 1275289



                       MEMORANDUM OPINION

      The jury found John Leonard Morin guilty of felony arson and made a

finding that he had used fire as a deadly weapon. After Morin pleaded true to two

enhancement paragraphs, the trial court sentenced him to forty years’ confinement.
In a single issue, Morin contends that the trial court abused its discretion in

admitting evidence of two extraneous offenses at trial. We affirm.

                                   Background

      In 2007, Efrain Mendoza hired Morin, whom he had known for nearly

twenty years, to work at his vehicle detailing business. At the time, Morin lived a

few doors away at a nearby garage.

      Over the course of the next three months, Morin became dissatisfied with his

job, demanded to be paid more, and told Mendoza “one day your cars [are] going

to be burned,” a threat overheard by two other employees. Morin later quit his job.

      On October 19, 2007, Morin repeatedly called Mendoza’s home at 3:30 a.m.

to tell him that cars at his business were on fire.         Arson investigators later

determined that the origin of the fire was Mendoza’s van.

      Several weeks thereafter, Mendoza saw Morin drive by the business and

take photographs. Mendoza testified that Morin angrily told him, “I’m not going

to be happy till [sic] you stay out of this place.” When Mendoza told Morin that he

knew he had started the fire, Morin challenged Mendoza to prove it. Following the

investigation, Morin was charged with arson.1




1
      The indictment contained two enhancement paragraphs for the felony offenses of
      burglary and arson.

                                         2
       Morin’s case came to trial in January 2011, but the jury deadlocked 10-2 in

favor of acquittal and the court declared a mistrial. In the second trial (October

2011), the State sought to admit evidence of three extraneous uncharged offenses.

Defense counsel objected that there was no evidence linking Morin to the

extraneous uncharged offenses. The trial withheld ruling on the motion until after

the presentation of testimony. On the trial’s last day, the court ruled that the

extraneous offense evidence was admissible, gave (at defense counsel’s request) a

limiting instruction prior to the State’s introduction of the extraneous evidence, and

included an extraneous offense instruction in the jury charge.

       The first witness, Mauricio Vega, testified that in 2006 he owned a red

Chevrolet pick-up that he occasionally parked in front of a storage facility in which

he stored his work tools. Morin, who worked at the storage facility, argued with

Vega several times telling him that he could not park his truck on or in front of the

facility. While parked in front of the storage facility in the early morning hours of

October 9, 2006, Vega’s truck was set on fire.         On cross-examination, Vega

testified that he did not report the fire at the time, and that he did not know who

started it.

       The second witness, Eugenio Carola, lived and worked at another storage

facility in close proximity to the first and, in 2006, hired Morin to knock out some

walls at the facility. Carola remembered that Morin had a problem with where

                                          3
Vega parked his truck. Carola typically parked his van in the driveway at the back

of the facility in front of the unit where he lived. Carola testified that, on several

occasions, Morin insisted that he move his van from the driveway. One evening,

after Carola refused to move the van, Morin told him, “I can’t promise you what’s

going to happen.”

      In the early morning hours of October 14, 2006—the day after Morin’s

statement—Carola’s van was set on fire. When Carola ran out of his unit and

discovered the fire, he heard a door slam shut at the other end of the facility where

Morin lived. Carola testified that while he and another employee were trying to

put out the fire, Morin ran up to them and asked what had happened. According to

Carola, Morin was salivating and acting as if the fire excited him. When the

firefighters arrived, Morin told them that Carola had set the fire. Carola testified

that when he asked Morin a few days later why he had set the fires, Morin replied,

“because I can.”2

                                     Discussion

      In his sole issue, Morin complains that the trial court abused its discretion in

granting the State’s motion to introduce evidence of extraneous offenses.

Specifically, Morin contends that the trial court erred because (1) the extraneous

evidence was not relevant to any issue under Texas Rule of Evidence 404(b), and

2
      Although the State identified three extraneous offenses in its motion and brief, it
      sought admission of only two of them at trial.
                                           4
(2) the probative value of the evidence was substantially outweighed by the danger

of unfair prejudice under Rule 403. The State argues that the extraneous offense

evidence was admissible to prove Morin’s identity, and that its probative value

outweighed any danger of unfair prejudice.

      A trial court’s decision to admit or exclude evidence of extraneous conduct

is reviewed for abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343

(Tex. Crim. App. 2009). As long as the trial court’s ruling is within the “zone of

reasonable disagreement,” there is no abuse of discretion, and the trial court’s

ruling will be upheld. See id. at 343–44. A trial court’s ruling is generally within

this zone if the evidence shows that (1) an extraneous transaction is relevant to a

material, non-propensity issue, and (2) the probative value of that evidence is not

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

or misleading of the jury. Id. at 344.

   A. Rule 404(b)

      Under Texas Rule of Evidence 404(b), 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). However, it may “be admissible for

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

knowledge, identity, or absence of mistake or accident.”         Id.   A party may

introduce evidence of an extraneous offense if such evidence logically serves to

                                         5
make more or less probable an elemental fact, an evidentiary fact that inferentially

leads to an elemental fact, or defensive evidence that undermines an elemental fact.

Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005).

      Texas Penal Code section 28.02 provides, in relevant part, as follows: “A

person commits an offense if the person starts a fire . . . with intent to destroy or

damage . . . any . . . vehicle . . . knowing that it is located on property belonging to

another . . . or, when the person is reckless about whether the burning or explosion

will endanger the life of some individual or the safety of the property of another.”

TEX. PENAL CODE ANN. § 28.02(a)(2)(D), (F) (West 2012). In his brief, Morin

acknowledges that “the primary issue was whether [he] was the person who set the

fire” to Mendoza’s van. Thus, an elemental fact—Morin’s identity—was placed at

issue at trial. See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006)

(noting that extraneous offense evidence may be admissible under Rule 404(b) to

show identity only when identity is at issue).

      When an extraneous offense is introduced to prove identity, “it must be so

similar to the charged offense that the offenses illustrate the defendant’s

‘distinctive and idiosyncratic manner of committing criminal acts.’” Id. (quoting

Martin, 173 S.W.3d at 468). Extraneous offense evidence is admissible to prove

identity “when the common characteristics of each offense are so unusual as to act

as the defendant’s ‘signature.’” Page, 213 S.W.3d at 336 (quoting Taylor v. State,

                                           6
920 S.W.2d 319, 322 (Tex. Crim. App. 1996)); see also Russell v. State, 113

S.W.3d 530, 541 (Tex. App.—Forth Worth 2003, pet. ref’d) (“[T]o be admissible

to show identity, an extraneous offense must be so similar to the charged offense as

to mark the offenses as the defendant’s handiwork.”) (emphasis in original)

(quotation omitted). The “signature” must be apparent from a comparison of the

circumstances in both cases. Page, 213 S.W.3d at 336. “Without a high degree of

similarity, the probative value of the extraneous offense evidence is outweighed by

its prejudicial effect.” Jabari v. State, 273 S.W.3d 745, 752 (Tex. App.—Houston

[1st Dist.] 2008, no pet.). In reviewing the trial court’s determination, we consider

the specific characteristics of the offenses and the time interval between them. See

Jabari, 273 S.W.3d at 752. “Sufficient similarity may be shown by proximity in

time and place or by a common mode of committing the offenses.” Id.

      Here, the record reveals that the three offenses occurred within one year of

each other3 and had the following similarities: (1) all three involved vehicle fires;

(2) each of the vehicles’ owners knew Morin; (3) the fires occurred in the same

neighborhood; (4) the fires occurred on or near the property where Morin lived or

  3
    There is no express time limit imposed by Rule 404(b). See Prince v. State, 192
S.W.3d 49, 55-56 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). Appellate courts
have found evidence of extraneous offenses to be admissible even though committed as
much as ten years after the charged offense. See id. (ten years); Hernandez v. State, 203
S.W.3d 477, 479–81 (Tex. App.—Waco 2006, pet. ref’d) (eight years); Thomas v. State,
126 S.W.3d 138, 146 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (eleven months).



                                           7
worked; (5) the fires were set in the early morning hours; (6) all three fires

occurred following a dispute between Morin and the vehicles’ owners; and (7) in

each instance, Morin had bullied the owner or threatened to destroy his vehicle.

Although the details of the offenses differed in some respects, Texas law does not

require extraneous offense evidence to be completely identical to the charged

offense in order to be admissible to prove identity. See Page, 213 S.W.3d at 338.

Here, the similarities in the proximity of time and place, and the mode of

commission     of   the   three   offenses       constitute   sufficiently distinguishing

characteristics such that the State’s introduction of the extraneous offenses to prove

Morin’s identity is permissible. See Davis v. State, 180 S.W.3d 277, 285 (Tex.

App.—Texarkana 2005, no pet.) (finding extraneous offense evidence relevant to

prove identity of assailant where attacks occurred at same time of night and within

blocks of one another, and assailant wore same clothing in both attacks).

   B. Rule 403

      Even when the admission of extraneous offense evidence is permissible

under Rule 404(b), we must still determine whether the probative value of the

offense is substantially outweighed by the danger of unfair prejudice under Rule

403 by considering: (1) the strength of the extraneous evidence to make a fact of

consequence more or less probable; (2) the potential of the extraneous offense to

impress the jury in some irrational but indelible way; (3) the time during trial that

                                             8
the State needed to develop evidence of the extraneous offense; and (4) the State’s

need for the extraneous offense evidence. Gigliobianco v. State, 210 S.W.3d 637,

641–42 (Tex. Crim. App. 2006). We uphold the trial court’s ruling on a Rule 403

balancing test, whether explicit or implied, if it is within the zone of reasonable

disagreement. Jabari, 273 S.W.3d at 753.

       “Probative value” refers to “the inherent probative force of an item of

evidence—that is, how strongly it serves to make more or less probable the

existence of a fact of consequence to the litigation.” Gigliobianco, 210 S.W.3d at

641. Here, we determined that the extraneous offense evidence is probative of an

element of the charged offense, identity. Further, the evidence addressed the

similarities of the fires involved. Because this evidence makes Morin’s identity as

the arsonist more probable, this factor weighs in favor of admissibility. Blackwell,

193 S.W.3d at 15.

      We then examine the extraneous evidence “for its potential to impress the

jury in some irrational but indelible way.”      Id.   To avoid any impermissible

inference of character conformity, a limiting instruction is given, as was done here

when, prior to the presentment of the extraneous evidence, the trial court orally

admonished the jury that it “may only consider the same in determining the

motive, opportunity, intent, preparation, plan, knowledge, identity or absence of

mistake or accident of the defendant, if any, in connection with the offense, if any,

                                         9
alleged against him in the indictment and for no other purpose.” The jury charge,

too, further expressly instructed the jury to consider the extraneous offense

evidence only in determining the issues enumerated in Rule 404(b).             See id.

(approving jury instruction limiting jury’s reliance on extraneous offense evidence

to issues enumerated in 404(b)). Because the jury was provided with these express

written and oral instructions limiting its consideration of the extraneous offense

evidence, we conclude that this factor weighs in favor of admissibility.

      With regard to the third factor, we consider the time that the State needed to

develop evidence of the extraneous offenses. Here, roughly twenty-six pages of

the approximately 372 pages (or seven percent) of the testimony during the guilt

and innocence phase of the trial involved the presentation of the extraneous offense

evidence. This factor weighs in favor of admissibility.

      Finally, the State’s need for the extraneous offense evidence in this case was

considerable. Given Morin’s defensive theory that he did not set the fire, the issue

of Morin’s identity was central to the State’s case. The State had no witnesses to

the ignition of the fire. See AllState Texas Lloyds v. Potter, 30 S.W.3d 658, 660

(Tex. App.—Texarkana 2000, no pet.) (noting that “arson may be proved by

circumstantial evidence because it is ordinarily conceived and executed in

secrecy.”). Indeed, absent the extraneous offense evidence at the first trial, the jury




                                          10
deadlocked. In light of such facts, the State’s need for the extraneous offense

evidence was high.

      Balancing all of the factors, we conclude that the trial court did not abuse its

discretion in determining the extraneous offense evidence was not substantially

more prejudicial than probative under Rule 403. Hammer v. State, 296 S.W.3d

555, 568 (Tex. Crim. App. 2009) (“[Rule 403] envisions exclusion of evidence

only when there is a ‘clear disparity between the degree of prejudice of the offered

evidence and its probative value.’”). As such, we overrule Morin’s issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




                                         11
