Peter Floyd Hackaday v. State

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

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

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.

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

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

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

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

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 .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

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 .

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-feet-seven-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

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.”

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

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

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

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

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 .

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

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.

“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

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 African-American 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

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.”

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).