CHARLES XAVIER HOWARD, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed February 26, 2010.
 
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01119-CR
............................
CHARLES XAVIER HOWARD, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-53634-P
.............................................................
OPINION
Before Justices Moseley, FitzGerald, and Lang-Miers
Opinion By Justice Lang-Miers
        A jury convicted appellant Charles Xavier Howard of capital murder and the trial court assessed a mandatory sentence of life in prison without the possibility of parole. In five issues appellant argues that he is entitled to a new trial because the evidence is factually insufficient to support his conviction and because the trial court committed reversible error when it admitted evidence of extraneous offenses. We resolve appellant's issues against him and affirm the trial court's judgment.
 
Background
 
        Appellant, along with his friend Justin Richards and a prostitute named Rocy Williams, decided to target random Hispanic men and rob them of cash to use to buy drugs. After two unsuccessful attempted robberies of other Hispanic men, Williams lured complainant Juan Jimenez to pull his car over and she got in his front passenger seat. Appellant and Richards, posing as Williams's security, got in the back seat and Jimenez began driving. According to Richards and Williams, appellant unexpectedly pulled out his gun a few minutes later and shot Jimenez once in the right side of the head from the back right passenger seat, after which the group dumped Jimenez's body in a remote area and burned his car and clothes. Appellant was interviewed by police and admitted to the robbery but claimed that Richards shot Jimenez. Appellant did not testify at his trial, but his defensive theory, developed during cross-examination and closing argument, was apparently that Richards acted independently and that appellant did not participate in or assist with the murder and could not have foreseen that the intended robbery would result in murder.
        After the close of the evidence, the trial court instructed the jury that it could convict appellant of capital murder on any of three alternative bases: (1) as the shooter, (2) as a party to the offense, or (3) under conspirator liability. The jury returned a general verdict finding appellant guilty of capital murder and the trial court assessed punishment as an automatic life sentence without the possibility of parole.
 
Factual Sufficiency of the Evidence
 
        In his first issue appellant argues that the evidence is factually insufficient to support his conviction because the State did not prove that he was the shooter or was otherwise criminally responsible for Jimenez's murder.
 
Applicable Law and Standard of Review
 
        Section 19.03 of the penal code makes it a capital offense to intentionally commit murder while in the course of committing or attempting to commit robbery. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2009). Even if a defendant does not commit murder himself, he may be found guilty as a party to the crime if he acts with the intent to promote or assist in the commission of the murder. See id. § 7.02(a)(2) (Vernon 2003). He also may be liable as a conspirator if there was a conspiracy to commit robbery and a co-conspirator committed a reasonably foreseeable murder in furtherance of the conspiracy. See id. § 7.02(b).
        When, as in this case, the trial court's charge authorized the jury to convict on alternative theories, we uphold the verdict of guilty if the evidence is sufficient on any of the theories. See Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex. Crim. App. 1992). When reviewing a challenge to the factual sufficiency of the evidence, we consider all of the evidence in a neutral light. Steadman v. State, 280 S.W.3d 242, 247 (Tex. Crim. App. 2009). Evidence is factually insufficient if “the evidence supporting the verdict is so weak or so against the great weight and preponderance of the evidence as to render the verdict manifestly unjust.” Id. In conducting our review, “we are required to give great deference to the jury's assessment of the credibility of the witnesses, the weight of the testimony, and the resolution of any conflicts in the testimony.” Gardner v. State, No. AP-75,582, 2009 WL 3365652, at *4 (Tex. Crim. App. Oct. 21, 2009). We are not free to override the verdict simply because we disagree with it and instead may conclude that the evidence is factually insufficient only when necessary to prevent manifest injustice. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).
The Evidence
 
         Richards's Testimony
        Richards testified that he was indicted for capital murder along with appellant. Richards and appellant had been friends on and off for over ten years and both lived near Mountain Creek Lake. They started hanging out together again about a month before Jimenez's murder, after Richards lost his job. After they met Williams, the three of them started hanging out together. Richards testified that on the night of Jimenez's murder, “the deal” was that Williams would lure a man to pull over and get him to drive her over to where appellant and Richards were waiting nearby, appellant and Richards would get in the back seat posing as Williams's security, then after driving a few blocks, the group would rob the man. Around midnight, Jimenez drove up to appellant and Richards with Williams in the passenger seat. Richards got in the car behind Jimenez and appellant got in the car behind Williams. Jimenez drove off and started talking to appellant about a motel. Jimenez stopped at a stop sign and as he turned left to check for traffic, appellant shot him in the back of the head from the rear right passenger seat. Although Richards knew that appellant carried a gun, Richards described the shooting as “out of the blue” and said he was “in a shock, scared mode” because it was supposed to be only a robbery.
        After he shot Jimenez, appellant told Richards and Williams to get out of the car. Appellant got out of the car and walked around to the passenger side. Appellant reached in through the front passenger seat and pulled Jimenez's body over onto the front passenger floorboard. Appellant got in the driver's seat, Richards and Williams got in the back seat, and appellant drove Jimenez's car to appellant's grandfather's house where appellant's truck was parked. Richards got out and drove appellant's truck. Appellant continued to drive Jimenez's car and he and Richards drove both vehicles to a gas station. They put gas in both vehicles and appellant drove Jimenez's car, with Richards following in appellant's truck, to Mountain Creek Lake, 25 or 30 minutes away. They drove into a field with high grass. By the time Richards got out of appellant's truck, appellant had pulled Jimenez's body out of the car and onto the ground. Appellant told Richards and Williams to help him take Jimenez's clothes and wedding ring off, leaving only his underwear. Appellant took Jimenez's ring off and gave it to Williams. Appellant took “close to $200” out of the Jimenez's jean pocket. They hid Jimenez's body by dragging it to a “high weeds, high tree area.”
        Appellant drove Jimenez's car to appellant's parents' house and Richards followed in appellant's truck. When they arrived, they looked through Jimenez's car but did not find anything of value. Appellant went inside his parents' house for about ten minutes and changed clothes. When he came back out, appellant told Richards and Williams that appellant's mom had asked him what had happened to him because she saw blood on his clothes. Next the group drove both vehicles to Richards's mom's house a few blocks away and Richards took a gas can from the back yard. They drove to another gas station and Richards filled the gas can with gas. After they left the gas station they had to stop and change a flat tire on Jimenez's car. They drove both cars to Mountain Creek Lake, parked Jimenez's car, and set it on fire using the gasoline. Then they drove in appellant's truck to a nearby park where they burned Jimenez's clothes and shoes. Appellant drove Richards home. The group hung out again the next day and used Jimenez's money to buy marijuana soaked in formaldehyde, known as “whack.” About a week later, Richards told his girlfriend, Latoyia Gray, what happened. Gray told police and Richards was later interviewed by a police detective. Richards led police to Jimenez's remains.
        On cross-examination, Richards acknowledged that he previously served five years in prison for “having a weapon in a prohibited place.” Richards denied telling a friend that Richards shot Jimenez and denied that he failed to tell the detective about getting the gas can.
                  Williams's Testimony
        Williams testified that she was indicted for capital murder along with appellant and Richards. She moved to Dallas a few months before meeting appellant and Richards. Before moving to Dallas, she served time in jail for assault and worked as a prostitute. She worked for appellant and Richards as a prostitute for about ten days and gave them the money she earned in exchange for dope.
        Williams was supposed to “find a person that was Hispanic with money” near a check cashing place and lead him to appellant and Richards so they could rob the man. Appellant, the group's leader, carried a gun. They made two other unsuccessful robbery attempts. This night, she was walking up and down the street around midnight when Jimenez pulled over. Williams got in the front passenger seat. Jimenez wanted to take her to north Dallas, but Williams told him “I can't go unless I ask my man.” She asked Jimenez to drive her over to where appellant and Richards were waiting nearby. She told them that Jimenez wanted to take her to north Dallas and they got in the back seat. Appellant sat behind Williams and Richards sat behind Jimenez. Appellant talked to Jimenez, and Jimenez began driving. A short time later, Williams turned around to ask appellant where they were going and saw appellant shoot Jimenez. Jimenez slumped over onto her lap. Williams was in shock and thought appellant would shoot her next. She jumped out of the car and appellant pointed a gun at her and told her to get back in the car. She got in the back seat and appellant got in the driver's seat. They drove to a gas station and put gas in Jimenez's car, and then went to get appellant's truck. Williams wanted to ride with Richards because he was more lenient with her and did not carry a gun, but appellant said “No, you stay with me.” With Williams riding in the back seat, appellant drove about 20 minutes to a field and Richards followed them in appellant's truck.
        Once in the field, appellant and Richards removed Jimenez's clothes, leaving only his boxers. Jimenez had $120 or $130 on him, and appellant took it and kept it. Williams never saw Jimenez's wedding ring. Appellant and Richards dragged Jimenez's body into a wooded area, and the group left and drove both vehicles to Richards's house. Appellant pulled Jimenez's car into a grassy space next to Richards's house and got a flat tire. Richards went inside to change his jacket and get a gas can. They stopped at appellant's house where appellant changed clothes and the group put a new tire on Jimenez's car. By this time it was around four or five a.m. Next they went to a park, poured gas on Jimenez's clothes and burned them along with Williams's jacket, because it had a lot of blood on it. They drove to and got gas at another gas station and then drove to Mountain Creek Lake. Appellant tried to drive Jimenez's car into a field, but it got stuck right off Mountain Creek Parkway. Appellant and Williams waited 45 minutes until Richards found them, and then appellant and Richards poured gas on Jimenez's car and lit it on fire around six or seven a.m. while Williams waited in appellant's truck. Appellant drove the group to his grandfather's house where they got high. Williams did not tell anyone about the murder because appellant and Richards knew where her grandmother lived and she was afraid that something might happen to her.
        During cross-examination Williams testified that when she moved to Dallas she initially lived with her grandmother until she was arrested for committing family violence against her boyfriend and put in jail. She also acknowledged that before she moved to Dallas she was initially charged with attempted murder after threatening to kill her foster mother's son with a knife, and the charge was later reduced to a misdemeanor. She also confirmed that she did not make a deal with prosecutors in exchange for her testimony in appellant's case.
         Other Evidence
        The State's other evidence included the testimony of Richards's girlfriend, Gray, who testified that she was on deferred probation for aggravated robbery at the time of appellant's trial. Gray testified that while she was dating Richards, she never saw him with a weapon but she saw appellant, Richards's friend, with a black handgun. While they were dating, Richards told Gray about the murder. He told her that he, appellant, and a woman planned to rob an Hispanic man, but after they got in the man's car, appellant shot the man and the group hid the man's body and burned the man's car. Gray described Richards as “remorseful” and explained to the jury that she thought she was pregnant with Richards's child when he told her about the murder. Gray said that when they would drive past the area where the body was located, Richards would point it out and say “well, the body is over there.” Richards asked Gray if she was going to tell the police but did not ask her not to tell them. She stopped dating Richards about two months later and called police. The first time she called she gave police her name and number and they called her back to set up a meeting. She met with Detective Paul Ellzey and took him to the general area where Richards had indicated the body was located, but they were not able to find the body.
        Detective Ellzey testified that he began investigating Jimenez's murder after another police officer received an anonymous phone call from a woman police later determined was Gray. He contacted Gray and met with her. She told him about the murder and indicated to him that she had actually seen the body. She led him to the general area where she thought the body was located, but they were unable to find it. He contacted Richards, who agreed to come talk to him. Richards drove Detective Ellzey to a wooded area and “went straight to several human bones that had been scattered over an area.” Detective Ellzey described Richards as “straightforward” and “cooperative.” Detective Ellzey told the jury that Richards showed remorse and that he believes Richards told him “a hundred percent true story.” He also acknowledged that defendants sometimes try to minimize their involvement in crimes, and that Richards could be “just like that.”
        Detective Ellzey also testified that he interviewed Williams. She told him about the group's plan to rob random Hispanic males believed to be carrying cash, and about Jimenez's murder. Williams's story matched Richards's story and she appeared to be telling the truth. On cross- examination, Detective Ellzey acknowledged that Richards told him that appellant, not Richards, got the gas can, and Williams told him that she was the one who poured gas on the car and burned it.
        Detective Ellzey also testified about interviewing appellant, and the videotape from that interview was played for the jury. In the videotape of his voluntary police interview, appellant initially denied that he knew Richards or Williams, later admitted he knew them but denied that he knew anything about the robbery or murder, and finally admitted that he participated in the robbery but claimed that Richards suddenly and unexpectedly shot Jimenez from the back right passenger seat while appellant was seated behind the driver and while Jimenez was stopped at a stop sign. Appellant told Detective Ellzey that the car rolled forward and Richards reached up and put it in park, then pulled the body over to the passenger side of the car. Appellant said he drove the car around the block to get his truck and split up from the group. He said he was not involved in dumping the body or burning the car and clothes. He initially denied being on Mountain Creek Parkway, but after Detective Ellzey told him that someone wrote down his license plate number, appellant admitted that he had gone to where the car was burning, and saw it burning, but said he was only there because the others called him and asked him to come pick them up.
        The State also played for the jury the videotape of Detective Ellzey's interview of jailhouse informant Edgar Taylor.   See Footnote 1  In that interview, Taylor said appellant told him about the murder. Appellant told Taylor that appellant “jumped in car behind the girl” and shot the Mexican driver, and that appellant later lied to police about which side of the car he was on because of what “ballistics might show.”         Demetrich Herford, who reported the car fire to police, testified for the State. She testified that she was driving 40 or 45 miles per hour on Mountain Creek Parkway taking her daughter to church on Saturday morning around 8:30 a.m. when she passed a car and a larger vehicle parked on the side of the rode and saw four people standing near them: two black men, a white man, and a woman. On the way back, she saw that the car was on fire and called police. By that time, the second vehicle and the people were gone.
        The medical examiner testified that Jimenez died as a result of a single gunshot wound. The bullet entered Jimenez's head above his right ear and exited on the back left side of his head. The murder weapon was never recovered and there was no physical evidence linking appellant to the murder. Appellant did not testify or present any other testimony or evidence.
Analysis
 
        Appellant argues that the evidence is factually insufficient to prove that he was the shooter or was otherwise criminally responsible for Jimenez's murder because (1) Richards and Williams, who were also indicted for capital murder, were not credible witnesses; (2) Richards and Williams gave inconsistent testimony about whether Jimenez's car was moving or stopped at a stop sign when he was shot; (3) Gray and Richards gave inconsistent testimony about whether Richards was the father of Gray's baby, and Gray had an incentive to lie to protect the father of her baby; (4) there were inconsistencies in witnesses' testimony about events that occurred after the murder, including Herford's testimony that she saw four people standing near the vehicles, and Richards's and Williams's conflicting testimony   See Footnote 2  about who took Jimenez's wedding ring, whether they burned the car or clothes first, and where the group went after burning the car and clothes; and (5) there was no physical evidence linking appellant to the crime.         Richards and Williams both acknowledged that they were also indicted for capital murder and testified that they did not make any deals with the State in exchange for their testimony in appellant's case. We note that the jury was instructed about the accomplice witness rule   See Footnote 3  and appellant does not argue that their testimony was not corroborated as required under that rule. Appellant was able to fully explore on cross-examination each witness's credibility and whether they had a motive to lie. The jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). It is also the jury's sole province to resolve conflicts in witnesses' testimony. See id. at 706 (“[A]n appellate court must give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in the better position to judge.”). And the fact that there was no physical evidence linking appellant to the crime does not render the evidence factually insufficient to support his conviction. See id. Appellant also argues that “the testimony and evidence raised the reasonable hypothesis that Richards and [Williams] falsely accused [a]ppellant of shooting [Jimenez] in order to avoid prosecution for capital murder.” But “merely offering an alternative theory does not mandate the jury to accept it.” Whitmire v. State, 183 S.W.3d 522, 527 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd); see also Steadman, 280 S.W.3d at 247 (“An appellate court may not find the evidence to be factually insufficient merely because there are 'reasonably equal competing theories of causation.'”).
                 After considering all of the evidence in a neutral light, we conclude that the evidence is factually sufficient to support a finding that appellant was the shooter, and factually sufficient to support appellant's conviction, because the finding of guilt is not so weak that appellant's conviction is clearly wrong and manifestly unjust, nor is the finding of guilt contradicted by the great weight and preponderance of the evidence. We resolve appellant's first issue against him.
Evidence of Prior Attempted Robberies
 
        In his last four issues appellant argues that the trial court erred when it overruled his objections under rules of evidence 404(b) and 403 and allowed Williams to testify about the group's two prior attempted robberies.
Background
 
        During trial, and outside the presence of the jury, the trial court held a hearing on the State's intent to offer testimony from Williams regarding the group's two other attempted robberies, which occurred within the week before Jimenez's murder. During that hearing, Williams testified that one attempt occurred when she was supposed to go into a check-cashing business to find “some Hispanic people who would be cashing their check and had a lot of money on them and lure them to a hotel where [appellant] and [Richards] would rob them.” Williams did not want to do it, so she walked out of the check-cashing business alone, and as a result, Richards held her while appellant beat her up. Williams testified that the other attempt occurred when she got into an Hispanic man's car thinking “it was going to be a regular date.” After they parked, Richards approached the car and tried to knock out the window with a crowbar and appellant approached the car with his gun. Williams jumped out and the man sped away. Appellant told her she should have put the car in park and held the man there. Williams explained that appellant wanted her to keep the man there because appellant had a gun and he could have “[s]hot him or held him up, robbed him.”   See Footnote 4 
        Appellant's counsel objected to this proffered testimony under rules of evidence 404(b) and 403.   See Footnote 5  In response, the State argued that the proffered testimony “goes to show not only their pattern of behavior, not only their prior knowledge of each other's actions, not only their intent of robbing these individuals, but it also goes to the element of conspiracy, parties and that, you know, [in] Mr. Jimenez's case, it was foreseeable that someone could be hurt or killed.” The trial court overruled appellant's objection, explaining,
 
The Court finds that the testimony concerning these alleged extraneous offenses is admissible to show the Defendant's intent, plan, knowledge to commit the alleged offense charged against him in this case. The Court finds that the testimony is relevant and has done the balancing test and finds that the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice[.]
 
        After the trial court overruled appellant's objections, Williams testified before the jury about the two prior robbery attempts. Detective Ellzey also testified that Williams told him about the group's general plan and the prior attempted robberies:
 
[Prosecutor]: Did [Williams] tell you about other incidents?
 
[Detective Ellzey]: She did.
 
[Prosecutor]: Did she tell you about being sent to a check-cashing store?
 
[Detective Ellzey]: With specific instructions from [appellant] and Justin Richards.
 
[Prosecutor]: To do what?
 
[Detective Ellzey]: To look for illegal Hispanics or people that appeared to be illegal Hispanic males who were cashing checks at a check-cashing place who were receiving large quantities of cash. She was told to target those individuals, to try to distract them and put them in a position where they would be vulnerable for a split second where both Justin Richards and [appellant] could commit the offense of robbery.
 
[Prosecutor]: And what about an incident where, in fact, she got into a car?
 
[Detective Ellzey]: She was very detailed about that. She said that again, she was at a check-cashing place, she saw a Hispanic male cash a check, receive a large sum of cash. That they walked back to the car. She sat in the car with him. While she was engaging him in conversation, distracting him, which was her specific job, Justin Richards took a crowbar and smashed the right rear window out, and [appellant] ran up to the driver's side and fired a weapon into the driver's window.
 
[Prosecutor]: So this was a-had these incidents happened close in time to Mr. Juan Jimenez's murder?
 
[Detective Ellzey]: Yes.
 
[Prosecutor]: And, in fact, had you been able to-did you search for reports about these incidents?
 
[Detective Ellzey]: I did.
 
[Prosecutor]: And were you able to confirm them?
 
[Detective Ellzey]: Yes.
 
[Prosecutor]: Now, what's the significance of targeting Hispanic males?
 
[Detective Ellzey]: Hispanic males generally carry a lot of cash. They don't carry credit cards, as a rule, especially Hispanics that may be illegal; they don't have checking accounts or credit cards. A lot of their business is in cash and they're easy targets, because a lot of them, because of their immigration status, are not so eager to report it to the police in fear that they may get jammed up and get deported. So they just suffer the loss.
 
 
 
Applicable Law and Standard of Review
 
        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; but it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1991) (op. on reh'g). Even if the evidence is admissible under rule 404(b), it may still be excluded under rule 403 if the trial court determines that its probative value is substantially outweighed by the danger of unfair prejudice. Montgomery, 810 S.W.2d at 387. Unfair prejudice occurs when the evidence has an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). We review the trial court's decision to admit evidence under an abuse of discretion standard and will not reverse that decision absent a clear abuse of discretion. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008).
Analysis
 
         Was the testimony about the prior attempted robberies admissible under rule 404(b)?
        In his fourth issue, appellant argues that the testimony about the previous incident at the check-cashing business was not admissible under any exception to rule 404(b) because (1) the incident “bore virtually no similarity” to Jimenez's murder, and (2) no testimony was offered that appellant planned to use a pistol during that intended robbery. In his second issue, appellant argues that the testimony about the attempted aggravated robbery of the man in the car was not admissible under any exception to rule 404(b), and particularly under the “plan” exception, because (1) it could only establish an intent to rob Jimenez, and there was no dispute that the group intended to rob Jimenez, and (2) the fact that appellant may have had a gun at the time of the previous attempted robbery does not tend to prove that appellant is the one who shot Jimenez at a different time and place. We disagree.
        Appellant was charged with capital murder for intentionally shooting Jimenez during the course of committing or attempting to commit robbery. See Tex. Penal Code Ann. § 19.03(a)(2). The testimony about both prior incidents was relevant to prove that the group's plan was to commit robbery-specifically, robbery of an Hispanic man whom they believed to be carrying cash. Moreover, the testimony about the prior attempted aggravated robbery of the man in the car was relevant to prove that appellant was the member of the group who carried the gun, which rebutted the defensive theory that appellant was not the shooter when Jimenez was murdered. See, e.g., Scott v. State, No. 06-05-00246-CR, 2007 WL 1159681, at *7 (Tex. App.-Texarkana April 20, 2007, pet. ref'd) (mem. op.) (not designated for publication) (defendant was charged with shooting and killing husband and evidence of defendant's previous attempt to shoot ex-husband was admissible under rule 404(b) because defendant “put at issue the shooter's identity”). As a result, we cannot conclude that the trial court abused its discretion when it overruled appellant's objection under rule 404(b). We resolve appellant's second and fourth issues against him.
        Was the testimony about the prior attempted robberies admissible under rule 403?
        Under rule of evidence 403, it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). In its rule 403 analysis, the trial court must balance the inherent probative force of the proffered evidence and the proponent's need for that evidence against competing factors including (1) any tendency of the evidence to suggest decision on an improper basis, (2) any tendency of the evidence to confuse or distract the jury from the main issues, (3) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (4) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
        In his fifth issue, appellant argues that the testimony about the previous incident at the check-cashing business was not admissible under rule 403 because it lacked inherent probative force in resolving the disputed issue of the identity of the shooter, and because it confused the jurors and “had a tendency to suggest that the jurors used such testimony to decide the case on an improper and emotional basis.” In his third issue, appellant argues that the testimony about the prior attempted robbery of the man in the car was not admissible under rule 403 because (1) it lacked inherent probative force in resolving the disputed issue of the identity of the shooter, (2) there was no need for the testimony because the State had already offered other testimony before the jury that appellant carried a handgun (specifically, Gray's testimony that she had seen appellant with a black handgun), (3) “the prior attempted aggravated robbery was violent in nature and was highly damaging to the defense,” and (4) there was a tendency for the jury to give undue weight to the testimony, and “the testimony had a highly distracting effect on the jurors.” We disagree.
        As to the first two factors relevant to the trial court's rule 403 analysis, we cannot conclude that the evidence of the prior incidents lacked inherent probative force, or that there was no need for the evidence. Both incidents occurred within a week of Jimenez's murder. The testimony about the incident at the check-cashing store was relevant to prove that the group was intent on robbing an Hispanic man believed to be carrying cash. The testimony about the attempted aggravated robbery of the man in the car was relevant to prove that appellant was the member of the group who carried the gun. And as to the remaining factors, we note that appellant does not contend that the evidence consumed an inordinate amount of time. We cannot conclude that the jury was confused or distracted by the testimony about the prior incidents, or that it gave undue weight to the evidence or reached its decision in this case on an improper basis. Moreover, we also note that the jury charge included a limiting instruction,   See Footnote 6  which minimized any potential for improper influence on the jury. See Chaddock v. State, 203 S.W.3d 916, 924 (Tex. App.-Dallas 2006, no pet.). As a result, we cannot conclude that the trial court abused its discretion when it overruled appellant's objection under rule 403. We resolve appellant's third and fifth issues against him.
Conclusion
 
        We resolve appellant's five issues against him and affirm the trial court's judgment.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081119F.U05
 
Footnote 1 Before the video of Taylor's interview was played for the jury, Taylor took the witness stand, denied that he was interviewed by Detective Ellzey, and repeatedly told the jury, sua sponte, that appellant was innocent and did not kill anyone. Appellant argues on appeal that Taylor's videotaped interview “simply amounted to impeachment testimony.” But appellant does not cite any authority to support his conclusory statement about Taylor's police interview, and appellant did not argue below that Taylor's interview could only be considered as impeachment testimony. As a result, and to the extent that appellant is arguing on appeal that Taylor's interview was improperly considered by the jury, we conclude that the argument was not preserved for appellate review and was not adequately briefed on appeal. See Tex. R. App. P. 33.1(a) (to preserve complaint for appellate review complaint must be raised below), 38.1(i) (appellant's brief must contain “clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”).
Footnote 2 Appellant also argues that Williams and Richards gave inconsistent testimony about changing the tire on Jimenez's car. We do not agree that the testimony about changing the tire was necessarily inconsistent. Nevertheless, even it if was, conflicting testimony about events occurring after the murder would not render the evidence factually insufficient to support appellant's conviction.
Footnote 3 Specifically, the jury charge contained the following instruction pursuant to article 38.14 of the code of criminal procedure:
 
 
You are instructed that Justin Richards and Rocy Williams are accomplices. Bearing this in mind, you are further instructed that you cannot convict the defendant upon said accomplices' testimony unless you first believe that the accomplices' evidence is true and shows the guilt of the defendant as charged by the indictment, and then you cannot convict the defendant unless the said accomplices' testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission, and then from all of the evidence you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him.
Footnote 4 During the hearing outside the presence of the jury, Williams described the incident in the car first, and then described the incident at the check- cashing place. But during her testimony in front of the jury, she clarified the actual sequence: the first incident was the incident at the check-cashing place and the second incident was in the car.
Footnote 5 Appellant's counsel's specific objection was that “[t]here's been no issues making these extraneous offenses appropriate at this time. They're not relevant, they're offered for reasons that are more prejudicial than probative, and we ask that her testimony regarding extraneous-extraneous offenses be limited out at this time.” The court of criminal appeals has explained that an objection that evidence of other crimes, wrongs, or acts is “not 'relevant'” or that it “constitutes an 'extraneous offense'” is sufficient to preserve error as to whether the evidence was admissible under rule 404(b). Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1991) (op. on reh'g). The court also indicated that if a trial court determines that the evidence is admissible under 404(b) as relevant apart from character conformity, an objection that the probative value of the evidence “is nevertheless substantially outweighed by, e.g., the danger of unfair prejudice” is sufficient to preserve error as to whether the evidence was admissible under rule 403. See id. at 389.
Footnote 6 Specifically, the jury charge stated:
 
 
 
You are instructed that if there is any evidence before you of the defendant having committed any other offenses or bad acts, other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any other purpose unless you first find and believe beyond a reasonable doubt that the defendant committed such other offenses or bad acts, if any, and even then, you may only consider such evidence to aid you in determining, if it does aid you, the defendant's intent, knowledge, plan, scheme, if any, to commit the offense alleged against him in the indictment in this case.