Burks, Cedric DeWayne v. The State of Texas--Appeal from 351st District Court of Harris County

Affirmedand Opinion filed May 2, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00789-CR

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CEDRIC DEWAYNE BURKS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris  County, Texas

Trial Court Cause No. 855,734

O P I N I O N

Appellant, Cedric DeWayne Burks, was convicted by a jury of the offense of aggravated robbery and sentenced to forty years= imprisonment and a fine of $5,000. In one point of error, appellant contends the trial court erred in admitting evidence of an extraneous offense at the guilt/innocence phase of his trial. We affirm.

On the afternoon of June 30, 2000, Sammy Tran withdrew $120,500 in cash from his bank and drove to the supermarket he owned. Mr. Tran parked his vehicle, got out, and went to retrieve his monies from the passenger side. At that point, appellant and an unidentified driver pulled up behind Mr. Tran=s vehicle in a stolen automobile. Appellant, brandishing a semiautomatic firearm, and the driver, wielding a screwdriver, exited their car. Appellant kept Mr. Tran away at gunpoint, while his companion broke the passenger window of Mr. Tran=s vehicle with the screwdriver and took the cash. The robbers, briefly pursued on foot by Mr. Tran and a co-worker, then fled the scene in their vehicle. A passing taxicab driver who had noticed the commotion also gave chase, but stopped his pursuit when appellant fired at his automobile.

Thereafter, officials from Mr. Tran=s bank, concerned that a number of their customers had also been robbed in similar fashion, alerted the Houston Police Department (AHPD@). On September 15, 2000, officers of the HPD Auto Theft Division Proactive Squad set up a sting operation. That morning, an undercover officer left the bank carrying two boxes which appeared to contain money. Appellant and an associate, who had been parked outside the bank for some time, followed as the undercover officer drove to the parking lot of a grocery store. Upon arrival, the officer exited his vehicle, leaving the boxes behind, and strode toward the store. Appellant then blocked the officer=s vehicle with his own, alighted, and smashed the driver=s side window with a screwdriver, at which juncture he was arrested for burglary of a motor vehicle.

Following his arrest, appellant was identified by Mr. Tran as having been the person who brandished the firearm during the June 30, 2000, robbery. Thereafter, appellant was charged with aggravated robbery, and it is from his conviction for this offense that appellant brings this appeal.

In his sole point of error, appellant contends the trial court erred in admitting evidence of an extraneous offenseChis September 15, 2000, burglary of the undercover officer=s motor vehicleCat the guilt/innocence phase of his trial because such evidence was not relevant. Specifically, appellant avers the charged and extraneous offenses were so dissimilar as to render the latter irrelevant on the issue of identity. We disagree.

Here, the State offered the extraneous offense to prove appellant=s identity after appellant offered testimony supporting his alibi defense. We review the trial court=s determination of admissibility for purposes other than character conformity under an abuse of discretion standard. Harvey v. State, 3 S.W.3d 170, 175 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (citing Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)). Identity and the rebuttal of defenses are both valid purposes for admitting such evidence. Id. (citing Lane, 933 S.W.2dat 519). An extraneous offense may be admissible to show identity only when identity is an issue in the case. Id. The issue of identity may be raised by the defendant during cross-examination of the State=s witnesses. Id. Here, as appellant concedes, the issue of identity was undoubtedly raised in the trial court by his counsel, who offered the defense of alibi and cross-examined witnesses as to their ability to see the perpetrator=s face during the robbery and the flight therefrom.

Merely raising the issue of identity does not, however, automatically render extraneous offenses admissible. Id. ATo 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 (citing Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993)). Sufficient similarity may be demonstrated Aby proximity in time and place or by a common mode of committing the offenses.@ Id. (emphasis in original).

In the instant case, both the charged and extraneous offense occurred during daylight hours on a Friday, after each victim departed the bank, alone, with what appeared to be packages containing money. Further, both offenses occurred in the parking lot of grocery stores, where appellant and a confederate, who had followed from the bank, blocked the victim=s vehicle with their own. Finally, the vehicles of both victims were entered by breaking their windows with a screwdriver.

Appellant contends the manner in which the two offenses were committed is not so similar and unique as to rule out the possibility they were committed by different perpetrators. While there are slight differences in the two offenses, we find the mode and surrounding circumstances of their commission sufficiently similar to render the evidence logically relevant to the rebuttal of appellant=s alibi defense. Lane, 933 S.W.2d at 519. Accordingly, we overrule appellant=s sole point of error.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed May 2, 2002.

Panel consists of Justices Hudson, Fowler, and Edelman.

Do Not Publish CTex. R. App. P. 47.3(b).