Peter Floyd Hackaday v. The State of Texas--Appeal from 185th District Court of Harris County

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Opinion issued June 18, 2009 In The Court of Appeals For The First District of Texas NO. 01 08 00827 CR PETER FLOYD HACKADAY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1128825 MEMORANDUM OPINION Appellant, Peter Floyd Hackaday, was charged by indictment with the offense of aggravated robbery, to which he pleaded not guilty. See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003). A jury found appellant guilty and assessed punishment at 15 years confinement. In three issues, appellant contends that (1) the non-accomplice evidence is insufficient to connect him with the commission of the offense; (2) the evidence is factually insufficient to prove appellant was a party to the offense, and (3) the trial court erred by admitting evidence of an extraneous offense. We affirm. Background On the night of August 11, 2007, Kristina Gallegos was the front-seat passenger in a white Ford Explorer driven by Jacqueline Martinez. While en route to pick up Gallegos s son, Gallegos and Martinez were passed by a blue Ford Explorer. The blue Explorer pulled in front of Gallegos and Martinez and stopped at a stop sign, where two men got out and headed toward Gallegos and Martinez. According to Gallegos and Martinez, one of the men, whom Martinez later identified as Jeremiah Holmes, got out of the driver s side of the blue Explorer. The other man, whom Martinez later identified as appellant, got out of the passenger side. Martinez testified that both men came from the back seat. Gallegos and Martinez each testified that the men were African-American, were wearing white or light-colored tee-shirts, and that they were wearing bandanas 2 over the lower portions of their faces. One of the bandanas was dark-colored. Gallegos added that the men were wearing baseball caps. Gallegos and Martinez each testified that they saw the man identified as Holmes with a gun in his hand. Gallegos testified that she feared he was going to kill her; Martinez testified that she believed they were being car jacked. As Martinez attempted to race around the men and drive away, Holmes fired into the vehicle breaking the passenger-side window and striking Gallegos in the right arm. Martinez drove Gallegos to the hospital, where Gallegos was treated for the gunshot wound. Martinez gave the police a description of the vehicle and of the men. Approximately an hour later, at an apartment complex in the same area, Gerardo Arellano arrived home from work and was getting out of his car when he was approached by two African-American men. Arellano testified that one of the men held him at gunpoint and demanded his money, while the other looked to the sides. Arellano attempted to get back into his car and the gunman reached into Arellano s pocket and took Arellano s money. The gunman then shot Arellano in his right arm, and the two men fled to a black vehicle waiting nearby. The bullet went through Arellano s right arm and into his side. Arellano was taken to the hospital by ambulance, where he underwent surgery and was hospitalized for over a month. Ultimately, Arellano was unable to identify the assailants, but he indicated that at 3 least three individuals were involved. Less than an hour later, the police located the blue Explorer and detained five individuals appellant, Holmes, Jonathan Lee, Jerome Hogan, and Jerrico Walton. Harris County Sheriff s Office ( HCSO ) Detective W. Valerio brought Martinez to the scene for a street lineup. Martinez was unable to identify the perpetrators by their facial features because of the bandanas that had covered their faces during the incident, but she was able to identify them based on height, build, and clothing. Martinez testified that she identified Holmes as the gunman and appellant as his cohort. Detective Valerio testified that Martinez s identification of the second man was tentative, but that she had described him as being five-feet-seven-inches to five-feet-eight-inches tall, 160 to 170 pounds, and similar in build to the gunman. Detective Valerio testified that Martinez s description ruled out Lee, Hogan, and Walton, in that one was taller, one was shorter, and smaller. HCSO Deputy R. Glover searched the blue Explorer, which was a 2000 model with Louisiana license plates. In the back seat, Deputy Glover found two bandanas one dark blue and one camouflage in color; two baseball caps; and a revolver. The revolver was found wrapped in the camouflage bandana and contained one live round and two spent casings. 4 Lee pled guilty to aggravated robbery for his role in the Gallegos and Arellano incidents. Lee testified that the group was on their way to a nightclub at around 11:00 p.m. on the night at issue and that they were traveling behind a white Ford Explorer. Lee asserted that he was sitting in the middle of the back seat between Holmes and appellant, and that appellant was seated on the passenger side. Holmes, who was seated on the driver s side, whispered something to Hogan. Hogan then sped up and got in front of the white Explorer. They stopped, and appellant got out of the passenger side of the vehicle. According to Lee, appellant acted alone. Holmes did not get out because the backseat-driver s-side door had a child safety lock and would not open. Lee said that he saw appellant pull a handgun from his waistband that was wrapped in a camouflage bandana and run towards the white Explorer. Lee said that this was not the first time he had seen appellant with the gun because appellant had shown Holmes the gun earlier in the evening. As the white Explorer drove away, appellant fired one shot at the vehicle. According to Lee, after the Gallegos incident, Holmes directed Hogan to the apartment complex where Arrellano was later robbed and shot. Holmes and appellant spoke outside the vehicle, but Lee did not hear the conversation. The two then went into an alleyway, with appellant carrying the handgun. Lee lost sight of Holmes and appellant, but heard something that sounded like a little firecracker. The two ran 5 back to the vehicle and Holmes had the gun. As they were driving away, Holmes handed money to Hogan. HCSD Deputy J. Hernandez interviewed appellant. In his statement, which was admitted at trial and read into the record, appellant admitted that he had been riding in the backseat of the blue Explorer during the incidents at issue. According to appellant, he was seated in the middle of the back seat between Lee and Holmes. While they were traveling westbound on the service road of Beltway 8, heading toward State Highway 249, Holmes pulled a black revolver from his waistband and said that he wanted to rob someone. They passed a white Explorer, later identified as that of Gallegos and Martinez, and stopped in front of it at a stop sign. According to appellant, Holmes and Lee got out and walked towards the white Explorer. Holmes had the revolver in his hand. Appellant saw the driver of the white Explorer attempt to drive around Holmes, and he heard a gunshot. According to appellant, as they were leaving the Gallegos shooting, Holmes said that he wanted money to buy weed and that he still wanted to rob some people. Hogan drove around for about an hour, attempting to find someone for Holmes to rob. They then followed a red car, later identified as Arellano s, into an apartment complex. Appellant stated that a Mexican Male got out of the car and that Holmes and Lee jumped out and ran up to him. Appellant saw Holmes point 6 the gun at Arellano and heard a gunshot. Holmes and Lee ran back to the Explorer, and the group drove away. Appellant then told Hogan to take him home. On the way, Holmes told Hogan to follow another vehicle into an apartment complex, where Holmes and Lee held a couple at gunpoint and took their money. Then, the group saw a man on foot in a parking lot and drove up to him. Without exiting the Explorer, Holmes pointed a gun at the man and demanded his money. The robbery attempt was foiled when they saw a marked police car drive into the parking lot. Hogan then drove to Northwest Park subdivision and parked. The men got out, and Holmes handed the gun to Lee to put in a mailbox. Lee refused and, instead, put the gun in the backseat. The men started walking toward Hogan s friend s house and, before they got to the house, the police surrounded and detained them. Appellant was charged with the aggravated robbery of Gallegos. The trial court admitted the evidence of the Arellano robbery as an extraneous offense. The jury charge authorized the jury to convict appellant either as a principal or as a party. Corroboration of Accomplice Witness Testimony In his first issue, appellant contends that the non-accomplice evidence is insufficient to connect him to the commission of the offense. Specifically, appellant contends that there is no non-accomplice evidence tending to show that Appellant 7 acted with intent to assist, aid or encourage the commission of the offense with the specific intent to commit the offense of aggravated robbery. In addition, appellant contends that Martinez and Gallegos failed to identify him in a line up, photo spread, or in the court room and that Martinez s height and weight description was insufficient to connect him to the offense because the record is silent regarding appellant s actual height and weight. A. Standard of Review Article 38.14 of the Texas Code of Criminal Procedure provides that a conviction cannot stand upon accomplice testimony unless it is corroborated by other evidence that tends to connect the accused with the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005); Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Cao v. State, 183 S.W.3d 707, 710 (Tex. App. Houston [1st Dist.] 2005, pet. ref d). Corroborating evidence is insufficient if it merely shows the commission of an offense. TEX. CODE CRIM. PROC. ANN. art. 38.14; Solomon, 49 S.W.3d at 361; Cao, 183 S.W.3d at 710. In making our review, we eliminate all of the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the offense. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The corroborating evidence need not be sufficient by itself to 8 establish guilt; there simply needs to be other evidence tending to connect the defendant to the offense alleged in the indictment. Id. The non-accomplice evidence need not directly link the accused to the commission of the offense nor need be sufficient on its own to establish the accused s guilt beyond a reasonable doubt. Id.; Cao, 183 S.W.3d at 710. Article 38.14 merely requires some non-accomplice evidence tending to connect the accused with the crime, not non-accomplice evidence for every element of the crime. Cao, 183 S.W.3d at 711 (citing Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001)). The appellant s liability as a principal or under a parties theory is of no relevance under an Article 38.14 analysis. The question is whether some evidence tends to connect him to the crime; the connection need not establish the exact nature of his involvement (as a principal or party). Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007). B. Analysis The trial court instructed the jury that the witness Lee was an accomplice as a matter of law. In addition, the trial court instructed the jury as to the corroboration required. Eliminating the testimony of Lee from consideration, we conclude that the record contains independent evidence that tends to connect appellant with the commission of the offense. See Castillo, 221 S.W.3d at 691. 9 Appellant attested, through his statement admitted at trial, that he was riding in the back seat of the Explorer with Holmes and Lee before, during, and after the commission of the offense at issue. See Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2007) (recognizing that corroboration may come from the accused and appellant s admission that he was there when offense occurred is some evidence that tends to connect him to commission of offense). Evidence that appellant was in the company of the accomplice at or near the time or place of the crime is proper corroborating evidence to support a conviction. See Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997). According to appellant, while he and the other men were traveling westbound on the service road of Beltway 8, heading toward State Highway 249, Holmes pulled a black revolver from his waistband and said that he wanted to rob someone. They were traveling behind a white Explorer when Holmes said that he wanted to rob the people in the white Explorer. Hogan then passed a white Explorer, later identified as that of Gallegos and Martinez, and stopped in front of it. Martinez and Gallegos testified that two men got out of the Explorer and began moving toward them. Martinez identified appellant as the man who got out of the passenger side. Gallegos and Martinez each testified that they saw the man who got out on the driver s side, later identified as Holmes, holding a gun. Gallegos testified 10 that she feared he was going to kill her; Martinez testified that she believed they were being car jacked. As Martinez attempted to race around the men and drive away, Holmes fired into the vehicle breaking the passenger-side window and striking Gallegos in the right arm. Martinez and Gallegos testified that Holmes and appellant were wearing bandanas one of which was dark-colored which concealed the lower portions of their faces. Deputy Glover testified that he found two bandanas one of which was dark blue and two baseball caps in the blue Explorer. He found a revolver wrapped in one of the bandanas. This evidence tends to connect appellant to the commission of the offense. See Rios v. State, 263 S.W.3d 1, 7 (Tex. App. Houston [1st Dist.] 2005, pet. dism d) (stating that police apprehending defendant in vehicle containing revolver and ski masks that victim testified assailants were wearing, were circumstances tending to connect defendant to commission of offense). Deputy Glover testified that he found these items in the back seat. Appellant attested, through his statement admitted at trial, that he had been sitting in the back seat of the Explorer. Considering the non-accomplice evidence in the record, we conclude that there is some evidence that tends to connect appellant to the aggravated robbery of Gallegos. See Joubert, 235 S.W.3d at 731; Castillo, 221 S.W.3d at 691. 11 Appellant contends that Martinez s identification based on her approximations of height and weight was insufficient to connect him to the offense because the record is silent regarding appellant s actual height and weight. Detective Valerio testified that, after Martinez identified Holmes, she described the second actor as five-feetseven-inches to five-feet-eight-inches in height, weighing 160 to 170 pounds, and similar to the build of Holmes. Detective Valerio testified that such physical attributes eliminated the other three men in the Explorer, in that one was taller, one was shorter, and smaller. The State was not required to present evidence of appellant s actual height and weight. See e.g., Jasso v. State, 112 S.W.3d 805, 810 12 (Tex. App. Houston [14th Dist.] 2003, pet. ref d); Sosa v. State, 177 S.W.3d 227, 230 (Tex. App. Houston [1st Dist.] 2005, no pet.) (holding that witness s identification based upon an individual s build, when corroborated with additional evidence, is legally sufficient). Although Deputy Valerio testified that Martinez was tentative in her identification of appellant, the fact that a non-accomplice witness cannot be positive in her identification goes to the weight of the testimony and not to its admissibility. See Simmons v. State, No. PD-0791-08, 2009 WL 1175047, at *4 (Tex. Crim. App. Apr. 9, 2009); Griffin v. State, 486 S.W.2d 948, 950 (Tex. Crim. App. 1972) (holding that less than positive identification based on clothing, where 12 defendant wore pantyhose over his head during commission of offense, sufficient to corroborate testimony of accomplice). Accordingly, we overrule appellant s first issue. Factual Sufficiency In his second issue, appellant challenges the factual sufficiency of the evidence to support his conviction as a party to the offense. A. Standard of Review In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). Evidence is factually insufficient when, although legally sufficient under a Jackson v. Virginia analysis, the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust or the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id.; Castillo, 221 S.W.3d at 693 (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979)). [A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the . . . evidence contradicts the jury s verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial. 13 Grotti, 273 S.W.3d at 283 (quoting Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006)). A reversal for factual insufficiency cannot occur when the greater weight and preponderance of the evidence actually favors conviction. Id. In our review, we must consider the most important evidence that the appellant claims undermines the jury s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). B. The Law A person commits the offense of robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. TEX. PENAL CODE ANN. §§ 29.02(a)(2), 31.03 (Vernon 2003 & Supp. 2008). A robbery is aggravated if, inter alia, the person causes serious bodily injury to another or uses or exhibits a deadly weapon. Id. § 29.03(a)(2). A firearm is, per se, a deadly weapon. TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (Vernon Supp. 2008). A person is criminally responsible as a party to an offense if the offense is committed by his conduct, by the conduct of another for which he is criminally responsible, or by both. Id. § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist 14 the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2). In determining whether the accused acted as a party, we may consider events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and a common design to commit the prohibited act. Payne v. State, 194 S.W.3d 689, 694 (Tex. App. Houston [14th Dist.] 2006, pet. ref d); see also Coleman v. State, 956 S.W.2d 98, 99 100, 103 (Tex. App. Tyler 1997, pet. ref d). Circumstantial evidence may be sufficient to establish a defendant s guilt as a party to an offense. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006). C. Analysis First, the State presented evidence that Holmes committed an aggravated robbery. See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2), 31.03. Martinez and Gallegos testified that a dark-colored Ford Explorer pulled around them and stopped, and that two African-American men got out and approached them. Both stated that the man who exited from the driver s side possessed a handgun. Gallegos testified that she was in fear that the gunman was going to kill her. Martinez testified that she believed they were being car jacked. As Martinez attempted to race around the men and drive away, the gunman shot Gallegos in the right arm. In a street lineup conducted approximately an hour-an-a-half after the incident, Martinez identified 15 Holmes as the gunman. The jury also heard appellant s statement, in which he attested that Holmes had stated that he wanted to rob the people in the White Explorer. In addition, the jury heard the testimony of Arellano, who, at a nearby apartment complex within an hour after the Gallegos incident, was held at gunpoint by two African-American men who first demanded his money, then took his money, and then shot him in the right arm. From this evidence, the jury could have reasonably concluded that Holmes committed an aggravated robbery, in that, while he was in the course of committing theft, he intentionally caused bodily injury to Gallegos or intentionally threatened or placed Gallegos in fear of imminent bodily injury or death. See TEX. PENAL CODE ANN. § 29.02(a)(2). In addition, Holmes used a deadly weapon. See id. § 29.03(a)(2). Appellant contends that there is no evidence that he, while acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid Holmes to commit the offense. See id. § 7.02(a)(2). By his statement, appellant admitted that he was in the blue Explorer with Holmes, Lee, and two other men on the night at issue. Lee testified that the group was on their way to a nightclub at around 11:00 p.m. and that they were traveling behind a white Explorer. Appellant stated that he and Holmes were sitting in the back 16 seat and that Holmes announced that he wanted to rob the people in the white Explorer. Appellant also said that Holmes had a black revolver, about eight inches long, in his waistband. Martinez and Gallegos testified that, at a stop sign, two men got out of the blue Explorer and, together, the men approached them. Gallegos testified that the gunman carried a dark-colored gun. Martinez identified appellant as the man who got out of the passenger side. Martinez testified that both men came from the back seat and that the faces of both men were concealed by bandanas. Gallegos testified that the men wore baseball caps. Deputy Glover testified that he found two bandanas, two baseball caps, and a revolver (which was wrapped in one of the bandanas) in the back seat of the Explorer. From this evidence, the jury could have rationally concluded that appellant knew that Holmes intended to rob Gallegos, that appellant knew that Holmes had a revolver, that appellant donned a bandana and cap to conceal his own identity, and that, acting with intent to promote or assist the commission of the robbery, appellant then got out of the blue Explorer and moved in concert with Holmes toward Gallegos and Martinez in an attempt to aid Holmes in the commission of a robbery. See id. § 7.02(a)(2); Grotti, 273 S.W.3d at 283. Appellant contends that the evidence is factually insufficient because Lee s testimony conflicted with that of Gallegos and Martinez at trial and with appellant s 17 own statement. Appellant contends that Lee s testimony that appellant was the sole actor was not credible because it conflicted with the testimony of Gallegos and Martinez that two men exited the Explorer. It is the within the province of the jury to resolve conflicts in the testimony and to determine what weight to afford the evidence. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App. Houston [1st Dist.] 2003, pet. ref d.). Moreover, the charge authorized the jury to convict appellant either as the principal or as a party. As the sole judge of the facts, the jury was free to believe all, some, or none of the testimony offered. See Cain v. State, 958 S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997); Jaggers, 125 S.W.3d at 672. In addition, appellant contends that the testimony conflicted concerning his clothing on the night of the incident. To the contrary, the record shows that Martinez testified that, during the incident, appellant was wearing a light-colored shirt and that, at the time of the street lineup, appellant was wearing a light-colored shirt under a dark-colored shirt. Lee testified that, during the evening, appellant had switched shirts and was wearing a gray shirt underneath a dark blue shirt. This testimony is consistent. As the sole judge of the facts, the jury was free to believe all, some, or none of the testimony offered. See Cain, 958 S.W.2d at 407 n.5; Jaggers, 125 S.W.3d at 672. 18 After reviewing all of the evidence in a neutral light, we cannot conclude that the evidence is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We hold that the evidence is factually sufficient to support appellant s conviction. Accordingly, we overrule appellant s second issue. Extraneous Offense In his third issue, appellant contends that the trial court erred by admitting evidence of an extraneous aggravated robbery allegedly committed by appellant. At trial, the State sought to admit evidence of the aggravated robbery of Arellano. The trial court overruled appellant s objections, which were brought under Rules of Evidence 403 and 404(b). A. The Applicable Law and Standard of Review Evidence of extraneous offenses is not admissible to prove the character of the person in order to show action in conformity therewith. TEX. R. EVID. 404(b). However, evidence of other crimes, wrongs, or acts may be admissible for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce 19 in the State s case-in-chief such evidence other than that arising in the same transaction. Id. Even if admissible under 404(b), evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. It is within the trial court s discretion to determine whether extraneous evidence has relevance apart from character conformity and whether the danger of unfair prejudice outweighs the probative value of the evidence. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court s determination as to the admissibility of the evidence is reviewed for an abuse of discretion. Id. If the trial court s ruling lies within the zone of reasonable disagreement, we will affirm. Id. B. Relevance An extraneous offense may be admissible to show identity only when identity is an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). The issue of identity may be raised by the defendant during cross-examination of the State s witnesses. Id.; Thomas v. State, 126 S.W.3d 138, 144 (Tex. App. Houston [1st Dist.] 2003, pet. ref d). Here, it is undisputed that identity was a contested material issue in this case and that appellant placed his identity at issue through his cross-examination of State s witnesses. 20 To be admissible to show identity, an extraneous offense must be so similar to the offense charged that the offenses are marked as the accused s handiwork. Lane, 933 S.W.2d at 519; see Thomas, 126 S.W.3d at 144 (stating that, to be considered relevant, the evidence must bear the signature of the offender ). Sufficient similarity may be shown by proximity in time and place or by a common mode of committing the offenses. Johnson v. State, 68 S.W.3d 644, 651 (Tex. Crim. App. 2002) (citing Lane, 933 S.W.2d at 519); Thomas, 126 S.W.3d at 144 (considering specific characteristics and time interval between extraneous and charged offenses). Here, appellant contends that the extraneous offense merely shows a repeated commission of crime and that the extraneous aggravated robbery was not so similar in characteristics to the alleged offense as to constitute a signature. The State contends that the aggravated robbery of Arellano is so similar to the robbery of Gallegos that it is admissible for the purpose of establishing appellant s identity. The record shows that the extraneous offense and the instant offense are both aggravated robberies that occurred on the same night, within an hour of each other, in the same area. See Johnson, 68 S.W.3d at 651 (considering offenses that occurred within short interval of time to be evidence of similarity as to identity); Walker v. State, 588 S.W.2d 920, 924 (Tex. Crim. App. 1979) (considering six offenses within 21 one month to be evidence of similarity as to identity and offenses taking place in the same area to be evidence of similarity as to identity); Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. App. 1974) (same). Further, in each offense, two AfricanAmerican men approached the complainants while each complainant was in his or her car, held the complainants at gunpoint, and shot the complainants. In each case, one of the men was armed, and the other acted as a lookout. In each offense, the two men were operating from a dark-colored or black vehicle that waited nearby. See Lane, 933 S.W.2d at 519 (considering specific modes to be evidence of distinguishing characteristics that went to identity). We conclude that the trial court did not abuse its discretion by determining that the extraneous offense evidence was relevant to the issue of identity. C. Prejudicial Effect Next, appellant contends that the probative value of the evidence was outweighed by the danger of unfair prejudice. Appellant does not provide any specific argument to support his contention in his brief on appeal. Although evidence is admissible under Rule 404(b), we must consider whether its probative value is substantially outweighed by the danger of unfair prejudice by examining (1) how compellingly the evidence serves to make more or less probable a fact of consequence, (2) the potential for the evidence to impress the jury in some 22 irrational but indelible way, (3) how much trial time the proponent needs to develop the evidence, and (4) how great is the proponent s need for the evidence. See TEX. R. EVID. 403; Montgomery v. State, 810 S.W.2d 372, 389, 390 (Tex. Crim. App. 1990); Jaggers, 125 S.W.3d at 670. Here, the record shows that the evidence presented makes more probable a fact of consequence, namely, that appellant is the person who assisted in the aggravated robbery of Gallegos. The potential for the evidence to impress the jury in an irrational but indelible way was not significant because the trial court instructed the jurors to limit their consideration of that evidence to the issues of proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. We must presume that the jury followed the instruction when, as here, no evidence has been presented to rebut that presumption. See Thrift v. State, 176 S.W.3d 221, 223 24 (Tex. Crim. App. 2005). Although some time was taken to develop the testimony as to the extraneous offense, we cannot conclude, nor does appellant contend, that the amount of time was excessive. Finally, the State s need for the evidence was significant because, although Martinez identified appellant as the second perpetrator, the record also shows that Martinez could not see appellant s face because of the bandana and that other testimony indicated that Martinez s identification of appellant as a perpetrator was tentative. 23 We must uphold the trial court s decision to admit evidence of other crimes, wrongs, or acts so long as the court s ruling was within the zone of reasonable disagreement. Roberts v. State, 29 S.W.3d 596, 600 (Tex. App. Houston [1st Dist.] 2000, pet. ref d). We conclude that, here, there are sufficient common distinguishing characteristics between the extraneous offense and the charged offense. We further conclude that the trial court did not abuse its discretion by determining that the probative value of the evidence was not outweighed by its danger of prejudice. See Moses, 105 S.W.3d at 627. We hold that the trial court did not abuse its discretion by admitting the extraneous evidence of the subsequent aggravated robbery. Accordingly, we overrule appellant s third issue. Conclusion We affirm the judgment of the trial court. Laura Carter Higley Justice Panel consists of Justices Jennings, Alcala, and Higley. Do not publish. See TEX. R. APP. P. 47.2(b). 24

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