Russell Lynn Raymer v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00354-CR

Russell Lynn Raymer,

Appellant

v.

The State of Texas,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 05-04416-CRF-272

MEMORANDUM Opinion

Appellant Russell Lynn Raymer was convicted of aggravated robbery and, as a repeat offender, assessed punishment of sixty-eight (68) years in prison. Raymer argues on appeal that the trial court abused its discretion by admitting evidence of an extraneous aggravated robbery to which Raymer had confessed. We will affirm the judgment of the trial court.

Background

On the afternoon of April 4, 2005, Mary Garcia was working as the assistant manger at the Handi-Stop convenience store in Bryan, Texas. That day, a white male wearing a homemade black mask, a plaid shirt, and yellow rubber gloves entered the store. The robber pointed a sawed-off shotgun at Garcia and demanded cash. Garcia gave him $200 from the register; the robber placed the money in a yellow Dollar General bag and fled. Garcia called the police and later described the man as a skinny white male, around 5 7 , with blue eyes, and light brown eyebrows.

Francis Guevara lived next door to the Handi-Stop. Near the time of the robbery, she saw a man sitting in the driver s seat of a truck. She then watched as another male came running from the direction of the store. He was carrying a yellow Dollar General bag, and when he jumped a fence, she saw money fall out of the bag. After returning to retrieve the money, he entered the passenger side of the truck. Guevara was able to memorize the license plate number and later gave it to police.

When police first attempted to check the license plate number, it was not valid. Officer Curtis, believing that Guevara may have mistaken a letter such as a zero for the letter O, changed one of the letters and the dispatcher responded that the license plate number matched that of a green truck.

After locating the vehicle, officers attempted to stop the truck on a traffic violation and a high-speed chase ensued. Raymer was driving the truck at the time and was the only occupant; he eventually stopped the truck and was apprehended when he tried to run away on foot. Raymer was taken to jail and booked, where he was found to have $159.14 in his possession. Police later searched his vehicle and found a plaid shirt, a mask, yellow rubber gloves, and loaded sawed-off shotgun.

Detective Darrell Fikes testified that he obtained a custodial statement from Raymer in which he admitted to committing the robbery at the Handi-Stop, with an accomplice, Shane Weldon. Raymer claimed that Weldon was the get-away driver and that he committed the robbery because he owed Weldon $2,000 for drug purchases. Fikes also testified that Raymer admitted to committing a robbery at Tobacco & More, a store in Bryan, Texas, two days before the robbery at the Handi-Stop. He testified that Raymer told him that the shotgun he used in the robbery was the same one recovered from his truck. He also implicated Weldon as having participated in several other robberies in the area. A videotape of the Tobacco & More robbery was admitted into evidence and played for the jury.

Raymer took the stand and argued that he was denied food when he made his confession. He also denied any involvement in the robberies of both the Handi-Stop and Tobacco & More. He further argued that it was Weldon who committed the robberies, and that he gave a false confession because he was under the influence of drugs. Raymer admitted that he had previously been sentenced to prison for several different theft and burglary convictions.

Extraneous Offense

In his sole issue, Raymer argues that the trial court erred when it admitted rebuttal evidence of the extraneous aggravated robbery that occurred at Tobacco & More. Specifically, Raymer argues that the evidence was inadmissible because the similarities between the robbery on trial and the extraneous robbery were insufficient to prove his signature. Taylor v. State, 920 S.W.2d 319, 322 (Tex. Crim. App. 1996). The State replies that the extraneous offense was admissible because it showed that the instant offense and the extraneous robbery were committed (1) close in time (two days apart) and (2) possessed characteristics that were sufficiently similar. Johnson v. State, 68 S.W.3d 644, 650-51 (Tex. Crim. App. 2002).

Evidence of other crimes, wrongs, or acts other than those for which the defendant is on trial is not admissible to prove the character of a person in order to show conformity therewith. Tex. R. Evid. 404(b). Generally, evidence of extraneous offenses may not be used against the accused in a criminal trial. Daggett v. State, 187 S.W.3d 444, 450 (Tex. Crim. App. 2005). But the "other crime, wrong, or act" may have relevance "apart from character conformity; that it tends to establish some elemental fact, such as identity or intent. Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000).

A trial court s ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial court s ruling is within the zone of reasonable disagreement, we will not interfere with the ruling. Graff v. State, 65 S.W.3d 730, 739 (Tex. App. Waco 2001, pet. ref d).

Evidence of an extraneous offense is admissible to prove identity when the issue of identity is contested and the extraneous offense is so similar to the charged offense that the offenses illustrate the defendant s distinctive and idiosyncratic manner of committing criminal acts. Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006). The issue of identity was contested in Raymer s trial because various witnesses gave conflicting descriptions of the accused. Additionally, Raymer testified at trial that it was Weldon who committed the crime and not him.

In determining the similarity of offenses to establish identity, appellate courts should take into account both the specific characteristics of the various offenses and the time interval between them. Johnson, 68 S.W.3d at 651. The exactness that might be required of an offense committed at a more remote period of time might not necessarily be required for an offense committed within a very short period of time. Id. The offenses presented here were committed within a few days of each other. The evidence showed that the extraneous robbery was committed on April 2, 2005, and this offense was committed on April 4, 2005.

Additionally, extraneous offenses are admissible when the offenses are sufficiently similar. In Lane v. State, the Court of Criminal Appeals stated it has previously held offenses to be sufficiently similar when, (1) both offenses were robberies, (2) both offenses were committed at gunpoint, (3) the defendant was aided by a confederate, and (4) the offenses occurred three days apart. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996).

Here, both offenses were robberies committed at convenience stores in the Bryan area with a sawed-off shotgun. Both suspects wore a mask and were white males, with a short build. Based on the proximity of time and the specific characteristics of the offenses, the extraneous offense was properly admitted. See Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. App. 1974) (extraneous robbery admissible because of close proximity in time and the similar characteristics of both offenses). Accordingly, we find that the trial court did not abuse its discretion in admitting the extraneous offense. Tex. R. Evid. 403, 404(b). We overrule Raymer s sole issue, and affirm the judgment of the trial court.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the result. A separate opinion will not issue.)

Affirmed

Opinion delivered and filed July 23, 2008

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