Nos. 05-03-01040-CR, 05-03-01041-CR
Opinion Filed November 19, 2004. DO NOT PUBLISH. Tex.R.App P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F-0250861-Himtmtm and F-0301024-HM. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
Opinion By Justice LANG.
Antwonne Deon Wright, appellant, was indicted for two counts of aggravated robbery, which were enhanced by a prior conviction. He appeals the jury's verdicts of guilty for aggravated robbery and a 40 year prison sentence for each count. Before trial, appellant requested the trial court to sever his trial from that of Johnny Shanada Humphrey. The trial court overruled his request. Appellant and Humphrey were tried jointly as codefendants. During the trial, appellant objected to the admission of extraneous transactions and the trial court overruled his objection. Appellant brings six issues on appeal, which essentially argue three points. First, appellant argues that the evidence is factually insufficient to support his convictions for aggravated robbery. Second, appellant argues that the trial court erred by admitting evidence of extraneous transactions. Third, appellant argues that the trial court erred by denying his request for a severance from Humphrey's trial. After reviewing appellant's claims, we conclude that the evidence is factually sufficient; appellant has not shown that the trial court abused its discretion by admitting evidence of extraneous transactions and assuming, without deciding, that the trial court erred, there was no harm; and appellant failed to preserve error based on the trial court's denial of his request for a severance and assuming, without deciding, that the trial court did err and that the error was not waived, there was no harm. The trial court's judgment is affirmed. Tex.R.App.P. 43.2(a).
I. FACTUAL AND PROCEDURAL BACKGROUND
Antonio and Aurelio Barsenas, brothers, returned to their apartment complex around 3:00 a.m. Antonio got out of the car and was standing next to the open passenger door when Humphrey suddenly appeared and put a gun to his head. Humphrey detained Antonio until appellant arrived and pointed his gun at Antonio. Then, Humphrey got into the car with Aurelio. Appellant demanded Antonio's money. Antonio gave appellant his wallet, which contained his credit card, driver's license, and some personal papers. Appellant continued to insist that Antonio "give [him] the money. If not, I will kill you." Also, appellant took Antonio's necklace and made him take off his shoes and socks. Appellant kicked Antonio and threw him to the ground. Meanwhile, Humphrey got into the car, pointed his gun at Aurelio, and demanded that Aurelio give him the car keys, his wallet, and his money. Humphrey "pulled at" Aurelio, but Aurelio got out of the car. Humphrey went around the front of the car and grabbed Aurelio. Aurelio handed Humphrey his wallet, which contained three "antique" Mexican pesos and his credit cards. Humphrey demanded that Aurelio turn over his gold bracelet, but Aurelio did not understand Humphrey's demand until Antonio translated it into Spanish. Then, Aurelio complied. Humphrey told Aurelio to take off his shoes, he complied, and Humphrey hit Aurelio on the head with his gun. Norma Hartfield pulled up in a tan, four-door Intrepid and yelled "Let's go, let's get out of here." Appellant and Humphrey got into the Intrepid and drove off. Aurelio ran after the Intrepid to try to get the license plate number. Then, the Intrepid reversed. Aurelio hid behind some boxes where the mail is placed. Apparently, because the assailants could not discover Aurelio's location, they left the apartment complex in the Intrepid. Antonio ran to the apartment he shared with Aurelio and called 9-1-1. He provided the 9-1-1 operator with a description of the suspects and the getaway car. The police arrived at the apartment complex and found Antonio and Aurelio Barsenas waiting for them. One of the officers spoke to the Barsenas brothers in Spanish. That officer translated the Barsenas brothers' description of the suspects and the getaway car into English, and the other officer transmitted the information to the dispatcher by radio. Meanwhile, Hartfield drove appellant and Humphrey to a nearby restaurant, but they decided to leave because it was too crowded. When they left, Humphrey drove the Intrepid rather than Hartfield. Two police officers on patrol received information from the dispatcher regarding a possible car-jacking or robbery. The officers observed a tan, Dodge Intrepid that matched the description and was in the general area stated by the dispatcher. They activated their emergency lights and pursued the car. At the same time, another patrol car, which had received the dispatch, began pursuing the Intrepid. The Intrepid pulled over. Humphrey was in the driver's seat, Hartfield was in the front passenger seat, and appellant was in the back seat. As one of the police officers approached the Intrepid, he observed appellant making some hand movements near a crease in the back seat cushion. After stopping the Intrepid, the police officers received from the dispatcher additional information on the robbery and the description of the suspects. The police officers observed that appellant, Humphrey, and Hartfield matched the description of the robbers. The police searched appellant and Humphrey. They found a gold necklace in appellant's left front pocket and a gold bracelet in Humphrey's left front pants pocket. The police searched Hartfield and found some "antique" pesos in her front shirt pocket, and $725, checkbooks, identification cards, and credit cards belonging to various other people in her purse. In the back of the Intrepid, the police found a driver's license and credit card laying on the backseat, and stuffed in the crease of the back seat the police found a check or bank card. None of the identification, credit cards, or checkbooks found belonged to appellant, Humphrey, or Hartfield. Also, the police found the guns used in the robbery hidden under the carpet in the trunk of the Intrepid. No drugs were found. The police transported Antonio and Aurelio Barsenas to the location where the Intrepid was stopped. The Barsenas brothers identified appellant and Humphrey as the robbers. Later, the Barsenas brothers identified some of their stolen property among the items found by the police. Appellant was indicted for two counts of aggravated robbery, which were enhanced by a prior conviction for delivery of a simulated controlled substance. Humphrey was indicted for the same offense. Before the trial, the trial judge asked if appellant or Humphrey objected to being tried jointly as codefendants. Appellant objected and requested that the trial court sever his trial from Humphrey's trial. The trial court overruled appellant's objection. After the State rested its case-in-chief, appellant indicated that he would testify and Humphrey indicated that he would not testify. Appellant did not reassert his request for a severance. Appellant testified in his own defense. After appellant testified, the State recalled one of the police officers as a rebuttal witness. The police officer testified to the items found in Hartfield's purse. Appellant objected to the testimony and the trial court overruled his objection. At the conclusion of the guilt/innocence phase of the trial, the jury found appellant and Humphrey guilty of aggravated robbery. During the punishment phase, appellant pleaded true to the enhancement paragraphs. The jury sentenced appellant to 40 years of imprisonment for each count of aggravated robbery. Appellant appeals the final judgments convicting him of aggravated robbery. II. FACTUAL SUFFICIENCY OF THE EVIDENCE
In his first issue on appeal, appellant argues the evidence is factually insufficient to support his convictions for aggravated robbery. The State responds that the evidence is factually sufficient to uphold appellant's convictions and that appellant's arguments are without merit because his testimony was "riddled with logical inconsistencies." A. Factual Sufficiency Standard of Review
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 481; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. A proper factual sufficiency review by an appellate court must include a discussion of the most important and relevant evidence that supports appellant's complaint on appeal. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). However, the appellate courts are not required to discuss all of the evidence admitted at trial. See id.B. Applicable Law
A person commits robbery if he intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or knowingly threatens or places another in fear of imminent bodily injury while committing theft. Tex. Pen. Code Ann. § 29.02 (Vernon 2003 Supp. 2004-05). Robbery is aggravated when the accused causes serious bodily injury to another, or uses or exhibits a deadly weapon. Tex. Pen. Code Ann. § 29.03. The intent element of "intentionally or knowingly" is required to convict a defendant of aggravated robbery. Escobar v. State, 28 S.W.3d 767, 779 (Tex.App.-Corpus Christi 2000, pet. ref'd). A person acts intentionally when it is his conscious objective or desire to engage in the conduct or cause the result. See Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). A person acts knowingly when he is aware of the nature of his conduct or that the circumstances surrounding his conduct exist. See Tex. Pen. Code Ann. § 6.03(b). Proof of intent is almost always proved by circumstantial evidence. See Sadler v. State, 728 S.W.2d 829, 831 (Tex.App.-Dallas 1987, no writ). A jury may infer the requisite intent from a defendant's actions. See Taylor v. State, 859 S.W.2d 466, 468 (Tex.App.-Dallas 1993, no writ). When a robbery is committed by threat or placing another in fear, "that fear must be of such nature as in reason and common experience is likely to induce a person to part with his property against his will." Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App. 1989) (citing Cranford v. State, 377 S.W.2d 957, 959 (Tex.Crim.App. 1964)); see also Jackson v. State, 913 S.W.2d 695, 700 (Tex.App.-Texarkana 1995, no pet.). The complainant's fear must develop as a result of the defendant's conduct. See Cranford, 377 S.W.2d at 959; see also Devine, 786 S.W.2d at 271 (stating that "some conduct on the part of the [defendant] is necessary to place the complainant in fear"); Jackson, 913 S.W.2d at 700. An appellate court must ask "if the words and conduct of the [defendant] were sufficient to place a reasonable person in the [complainant's] circumstances in fear of imminent bodily injury or death." See Welch v. State, 880 S.W.2d 225, 226 (Tex.App.-Austin 1994, no pet.); see also Jackson, 913 S.W.2d at 700. A person commits theft, if he unlawfully appropriates property with the intent to deprive the owner of that property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004-05). An "owner" of property means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Tex. Pen. Code Ann. § 1.07(35) (Vernon Supp. 2004-05). A defendant's unexplained possession of recently stolen property is sufficient for a jury to infer the intent to steal that property for purposes of a robbery conviction. See Taylor, 859 S.W.2d at 468. A deadly weapon is a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. Tex. Pen. Code Ann. § 1.07(17)(a). A handgun is a deadly weapon per se. Anderson v. State, 813 S.W.2d 177, 179 (Tex.App.-Dallas 1991, no writ). The Court of Criminal Appeals has referred to § 7.01 and § 7.02 of the Texas Penal Code as the "law of parties." E.g., Montoya v. State, 810 S.W.2d 160, 165 (Tex.Crim.App. 1989). When a jury is charged on the law of parties, a person may be convicted as a party to an offense, if the offense is committed by his own conduct or by the conduct of another for which he is criminally responsible. Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003 Supp. 2004-05). A person is a party to an offense 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." Tex. Pen. Code Ann. § 7.02(a)(2). The evidence is sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. See Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1985). The evidence must show that, at the time of the offense, the parties were acting together and each party was contributing to their common purpose. See Cordova, 698 S.W.2d at 111. C. Application of the Law to the Facts
Appellant argues that the jury verdicts are wrong and unjust because the State relied on the "inconsistent and contradictory" testimony of the Barsenas brothers, which was rebutted by his testimony that their accusations of robbery were false and made to retaliate against him because he sold them fake drugs. 1. Evidence Tending to Disprove Appellant's Guilt
Appellant asserts that we should focus on five pieces of evidence. First, he argues that his testimony rebutted the testimony of the Barsenas brothers and the police. Second, according to appellant, the evidence supports his contention that he was invited by the Barsenas brothers to their apartment complex to sell them drugs. Third, appellant suggests there is conflicting testimony regarding whether Humphrey got into the car with Aurelio Barsenas and whether the car was left with the motor running. Fourth, appellant asserts there is conflicting testimony about the getaway car. Fifth, appellant argues his testimony supporting his innocence is substantiated because the record shows he did not attempt to evade the police. (a) Appellant's Testimony
First, we address the evidence to which appellant points us, which he says disproves his guilt and proves his claim that the Barsenas brothers reported a robbery to retaliate against him for selling them fake drugs. He argues that we should focus on his testimony that he had a prior relationship with the Barsenas brothers, the alleged robbery was actually a drug deal, he has a bad leg, and the police hid evidence that would support his version of events. Appellant testified he has known Antonio Barsenas for several years. He stated that he knew the Barsenas brothers because he often sold them drugs. He claimed the Barsenas brothers were able to identify his guns because he normally used them during drug deals, but he did not use a gun on the night of the alleged robbery. Also, appellant stated that on the night of the alleged robbery, Antonio paged Humphrey because he wanted to buy drugs. Appellant claimed that when they got to the Barsenas brothers' apartment complex, Antonio and Aurelio did not have any money. As a result, according to appellant, he took the Barsenas brothers' jewelry, pesos, identification, and credit cards as "collateral" until the next day when the Barsenas brothers were supposed to pay him $140. In exchange for the "collateral," appellant claimed he sold them fake drugs. Appellant says he divided the "collateral" with Humphrey and Hartfield, and they were not planning on returning the "collateral" because they had sold the Barsenas brothers fake drugs. Also, appellant claimed the Barsenas brothers reported they were robbed to retaliate against appellant and Humphrey for selling them fake drugs. In addition, appellant stated he had a fractured leg from a gunshot wound. He maintained he could not have kicked Antonio Barsenas because of his unhealed fracture. Finally, appellant explained that he did not need to rob anyone because he had money from selling drugs. He claimed the police found drugs and money when they searched him and the Intrepid, but they never turned it in. (b) Invited to Apartment Complex
Appellant argues the record shows he and Humphrey were invited to the Barsenas brothers' apartment complex, so they could buy drugs. He suggests the record shows his testimony provides the only explanation for his entrance into the Barsenas brothers' gated apartment complex. According to the record, Antonio Barsenas testified the apartment complex was a gated community, a security card is needed to open the gate, and the gate is supposed to close automatically. Also, Aurelio Barsenas stated that on the night of the robbery, he used the security card, the gate opened, he drove through the entrance, and the gate closed behind him. Appellant testified the Barsenas brothers gave Humphrey and him the security code when the Barsenas brothers paged them to buy drugs. (c) Did Humphrey Get Into the Car and Was the Motor Left Running
Appellant tells us we should consider that there is conflicting testimony regarding whether Humphrey got into the car with Aurelio Barsenas and whether Aurelio left the car running. We note that during the trial, Antonio and Aurelio Barsenas testified through an interpreter. The record shows Antonio Barsenas testified "[o]nly one [sic] hold me so — well, [appellant] arrived so [Humphrey] can go around get around [sic] my brother still [sic] in the car." Also, Antonio Barsenas answered "correct," when the State asked "When [Humphrey] ran to your brother's side — your brother was in the driver's side, correct?" The record shows on direct examination Aurelio Barsenas testified he was still inside the car when Humphrey got in on the passenger side, pointed a gun at him, and demanded the keys to the car, his wallet, and "the money." When the State asked Aurelio if he ever got out of the car, Aurelio answered, "[Humphrey] was pulling me from here (indicating). I opened the door and got out. I did not turn off the car. It stayed on. And [Humphrey] went around the car from the front, and I kept standing outside of the car. [Humphrey] came in, grabbed me, and closed the door." During cross-examination, Aurelio stated, "[Humphrey] got in first. Then he was pulling me and he was putting the gun in [sic] my head. So what I did was get off [sic] the car. [Humphrey] got off [sic] the car, walk [sic] around the front of the car, and I remain [sic] standing outside the car." Also, during cross-examination, Aurelio testified no one stopped him from getting out the car, but once he got out of the car, "[Humphrey] came from behind me. [Humphrey] hold [sic] me and I put the lock on the car, and I close the door. The car was left with the lights on." In addition, Aurelio stated that before he got out of the car, "[I] took off [sic] the keys and I put them underneath the seat." (d) Getaway Car
Appellant asserts there is conflicting testimony regarding the getaway car. The record shows Antonio Barsenas testified "[Hartfield] was in the car, she came out of the parking [sic] and she yelled, Let's go, let's get out of here." The record shows Aurelio Barsenas testified during direct examination that "[appellant and Humphrey] run to the car. There was a woman driving." Also, the record shows that during cross-examination Aurelio answered "yes" to the following questions: (1) "Was the car parked when [appellant and Humphrey] got into it?"; (2) "So [appellant and Humphrey] ran over to the parked car and then the car pulled out of the parking space?"; and (3) "And then the car pulled off; is that correct?" (e) Appellant Did Not Try to Evade Police
Appellant argues his testimony that he did not rob the Barsenas brothers is supported by the fact that he did not try to flee when the police stopped the Intrepid. He says if he was fleeing from a robbery, he could have taken a different route, which would have taken him to the expressway and, once on the expressway, he could have been far away from the area of the robbery. The record shows Humphrey was driving the Intrepid. Humphrey made a right turn before he stopped the Intrepid, but he did not take any action that would have led the police to believe he was attempting to flee. The police officers stated that appellant, Humphrey, and Hartfield were cooperative, did not resist, and did not take any evasive action. Also, the record shows that appellant, Humphrey, and Hartfield were stopped approximately a quarter to one-half mile from the crime scene. The crime scene was a few minutes away from the expressway. However, one of the police officers stated that very frequently persons who commit a robbery stay around the area of the crime. 2. Evidence of Appellant's Guilt
Now we must consider the evidence that tends to prove appellant's guilt. The record shows Antonio and Aurelio identified appellant and Humphrey in court as the men who approached them, pointed a gun at them, and demanded their money, wallets, and jewelry. Both Antonio and Aurelio Barsenas testified they had never seen appellant or Humphrey until they were robbed and they were afraid for their lives during the robbery. Antonio stated appellant demanded that he "give [appellant] the money. If not, I will kill you." See Welch, 880 S.W.2d at 226; see also Jackson, 913 S.W.2d at 700. Also, he stated appellant kicked him and threw him to the ground. See Welch, 880 S.W.2d at 226. Aurelio stated Humphrey hit him on the head with his gun. See id. at 226. One of the police officers testified Aurelio's head appeared to be injured. While she was interviewing him, he became dizzy and she called the paramedics. Photographs of Aurelio's head injury were admitted into evidence at trial. Aurelio stated he went to the hospital after he left the police department, but he did not need stitches. Also, the record shows the Barsenas brothers testified appellant and Humphrey stole their property. Some of the Barsenas brothers' property, with the exception of Antonio's wallet and shoes, was found on appellant, Humphrey, and Hartfield. See Taylor, 859 S.W.2d at 468. Appellant testified he and his companions did not intend to return the Barsenas brothers' property because they had sold them fake drugs. See Tex. Pen. Code Ann. § 31.03(a). During the trial, Antonio Barsenas testified the gun appellant pointed at him was chrome or silver, and Aurelio testified the gun Humphrey pointed at him and hit him with was black. Two of the police officers stated they found two firearms underneath the carpet in the trunk of the Intrepid. One of the firearms was chrome and the other was black. The officers stated the firearms were unloaded and turned over to the detective from the crime scene research department. The crime scene research detective testified she was given two firearms and some ammunition. She stated the firearms were semi-automatic weapons and appeared to be in working order. See Anderson, 813 S.W.2d at 179. The firearms and ammunition were admitted into evidence. In addition, the record shows that at the time of the robbery, appellant and Humphrey were both present and were acting together to commit the robbery. Appellant admitted he and Humphrey were present at the Barsenas brothers' apartment complex. See Tex. Pen. Code Ann. § 7.02(a)(2). Antonio Barsenas testified Humphrey approached and detained him until appellant arrived and pointed his gun at him. See Cordova, 698 S.W.2d at 111. The record shows that appellant and Humphrey pointed their guns at the Barsenas brothers, took their property, and left together in the same vehicle. See id. Appellant testified he sells "dope" with Humphrey and Hartfield, and that the three of them are always together. 3. Discussion
The indictments alleged that appellant in the course of committing theft did the following: (1) intentionally and knowingly and recklessly cause bodily injury to Aurelio Barcenas, by striking him with a firearm; and (2) intentionally and knowingly threatened and placed Antonio and Aurelio Barcenas in fear of imminent bodily injury and death, and exhibited a deadly weapon ( i.e., a firearm). Also, the trial court's charge to the jury included an instruction on the law of parties. Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that appellant was guilty of aggravated robbery. It is clear that appellant's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. A jury's decision is not manifestly unjust merely because it resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410. The evidence was neither so obviously weak that appellant's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond a reasonable doubt burden of proof could not have been met. After reviewing all of the evidence in a neutral light, we conclude that the evidence is factually sufficient to support appellant's convictions for aggravated robbery. Appellant's first issue on appeal is decided against him. III. EXTRANEOUS TRANSACTIONS
In his second through fifth issues on appeal, appellant argues the trial court erred by admitting evidence of extraneous transactions ( i.e., the items found in Hartfield's pursue) because it reveals the possible commission of other thefts or robberies. Also, appellant argues that the trial court's error in admitting this evidence constitutes reversible error. A. Standard of Review
An appellate court reviews a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. See, e.g., Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003); Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). Accordingly, an appellate court reviews a trial court's ruling on extraneous offense evidence for an abuse of discretion. See Page v. State, 137 S.W.3d 75, 78 (Tex.Crim.App. 2004). An appellate court shall give deference to a trial court when it decides not to exclude the extraneous offense evidence and finds that the probative value of that evidence is not outweighed by the danger of unfair prejudice. See Moses, 105 S.W.3d at 627. B. Did the Evidence Constitute Extraneous Offense Evidence?
In his second issue on appeal, appellant argues the State failed to prove beyond a reasonable doubt that the items in Hartfield's purse were evidence of an offense and that he was connected to those items. The State responds that the trial court did not err by admitting evidence relating to what was found in Hartfield's purse because it is not evidence of an extraneous transaction. 1. Applicable Law
An extraneous offense is defined as any act of misconduct, whether prosecuted or not, that is not shown in the charging papers. Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App. 2003); Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App. 1996) (en banc); see also James v. State, 89 S.W.3d 86, 89 (Tex.App.-Corpus Christi 2002, no pet.); Nunez v. State, 27 S.W.3d 210, 213 (Tex.App.-El Paso 2000, no pet.). To constitute an extraneous offense, the evidence must show a crime or bad act, and that the defendant was connected to it. Lockhart v. State, 847 S.W.2d 568, 573 (Tex.Crim.App. 1992) (en banc); see Tex. R. Evid. 404(b); see also Castillo v. State, 59 S.W.3d 357, 361 (Tex.App.-Dallas 2001, pet. ref'd). The evidence must include some sort of extraneous conduct on behalf of the defendant, which forms a part of the alleged extraneous offense. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993); Harris v. State, 738 S.W.2d 207, 224 (Tex.Crim.App. 1986) (opin. reh'g) (en banc); see also Castillo, 59 S.W.3d at 361. If the complained of evidence does not demonstrate the defendant was in some way connected to the offense, an extraneous offense is not established. Harris, 738 S.W.2d at 224; James, 89 S.W.3d at 89. 2. Application of the Law to the Facts
The State offered Detective Sanders' testimony regarding the items found in Hartfield's purse as rebuttal testimony after appellant testified to his version of the facts. This testimony shows, at most, that appellant's companion, Hartfield, had items belonging to other persons in her purse. Because there was no evidence that appellant was carrying Hartfield's purse or that he knew what was in it, appellant was not directly connected with a specific extraneous offense. See Harris, 738 S.W.2d at 224; see also James, 89 S.W.3d at 90 (neither prosecutor's nor witnesses' statements mentioning a gun implicated defendant in any extraneous offense). Neither the State nor its witness mentioned that those items were stolen. See Harris, 738 S.W.2d at 224. The references to theft and robbery were made by defense counsel during cross-examination. We recognize that this evidence offers the jury a tempting invitation to speculate as to the occurrence of other robberies. See id. However, we need not decide appellant's second issue on appeal. Tex.R.App.P. 47.1. For purposes of this appeal, we will assume, without deciding, that the evidence of the items found in Hartfield's purse is extraneous offense evidence and, accordingly, we turn to appellant's arguments relating to relevancy and any harm to appellant associated with the admission of this evidence. C. Was the Evidence, if it was Extraneous Offense Evidence, Relevant?
In his third and fourth issues on appeal, appellant argues the evidence of extraneous transactions was not relevant and it was not admissible because the State failed to prove that an exception in Texas Rule of Evidence 404(b) applies. The State responds that the trial court did not err by admitting evidence relating to what was found in Hartfield's purse because it is relevant. Also, the State responds that pursuant to Texas Rule of Evidence 404(b), the evidence was admissible to prove intent and to rebut a defensive theory. 1. Applicable Law
Evidence which is not relevant is not admissible. Tex. R. Evid. 402; see also Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App. 1990) (opin. reh'g). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Even when evidence is relevant, Texas Rule of Evidence 404(b) prohibits the admission of evidence of other crimes, wrongs, or acts unless it is relevant to prove some issue other than the defendant's criminal character. See Montgomery, 810 S.W.2d at 386. Such issues include the following: (1) motive; (2) opportunity; (3) intent; (4) preparation; (5) plan; (6) knowledge; (7) identity; and (8) absence of mistake or accident. Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 387. Evidence of other crimes, wrongs, or bad acts may also be admissible to rebut a defensive theory. Powell, 63 S.W.3d at 439; Rankin, 974 S.W.2d at 718. Further, a trial court's limiting instructions may show the purpose for which the trial court admitted the extraneous offense evidence. See Powell, 63 S.W.3d at 439 (citing Tex. R. Evid. 105(a) (providing for limiting instruction when evidence is admissible for one purpose but not admissible for another)). 2. Application of the Law to the Facts
After appellant testified, the State recalled Detective Sanders as a rebuttal witness and questioned her about the items she found in Hartfield's purse. Appellant objected to the relevance of her testimony. The trial court overruled the objection. Detective Sanders stated she found $725, and several items of personal identification, credit cards, and checkbooks in Hartfield's purse. Appellant requested and the trial court granted a hearing outside the presence of the jury. During that hearing, Detective Sanders stated she did not know if the items found in Hartfield's purse were lost or stolen because the case against Hartfield was assigned to a different detective. Appellant objected to Detective Sanders' testimony on the basis that it was evidence of extraneous offenses, was not relevant, and the prejudicial effect was greater than the probative value. Appellant argued that the State failed to prove beyond a reasonable doubt that the items were stolen or that appellant was connected to those items. The State responded that before it offered the evidence of the contents of Hartfield's purse, appellant testified there is no reason for Humphrey, Hartfield, or him to rob anyone because they make a lot of money selling drugs. Also, the State contends the evidence of the items found in Hartfield's purse attacks appellant's credibility and tends to prove appellant and his companions to be other than drug dealers. The trial court overruled appellant's objection. In the presence of the jury, Detective Sanders continued her testimony and described the names appearing on the items found in Hartfield's purse. The items were admitted into evidence. The trial court included in the jury charge a limiting instruction regarding extraneous offense evidence. The instruction advised the jury that any extraneous offense evidence could only be considered if they found beyond a reasonable doubt that the defendant committed those other offenses and they could only consider such evidence in determining his motive, intent, or scheme or design for the offenses alleged in the indictments. The State was required to prove appellant caused bodily injury to Aurelio Barsenas, and intentionally or knowingly threatened or placed the Barsenas brothers in fear of imminent bodily injury while committing theft. See Tex. Pen. Code Ann. § 29.02. We conclude the evidence, which we assumed was extraneous offense evidence, is relevant because it makes the existence of the fact that the Barsenas brothers' property was stolen more probable. See Tex. R. Evid. 401. Having found the extraneous offense evidence relevant, we must determine if the evidence had relevance apart from merely tending to show that appellant acted in conformity with his bad character or "character conformity." Montgomery, 810 S.W.2d 386-88; Powell, 63 S.W.3d at 438. Appellant presented a defensive theory that: (1) he lacked the requisite criminal motive and intent to commit aggravated robbery because the Barsenas brothers voluntarily gave him their identification, wallets, and jewelry as "collateral" for drugs; (2) they accused him of robbery to retaliate against him for selling them fake drugs; and (3) he did not need to rob anyone because he had a lot of money from selling drugs. The extraneous offense evidence tends to make the existence of a material fact in this case, that is whether appellant committed theft, more probable. Therefore, the evidence had relevance apart from character conformity because it was relevant to prove motive and intent, and to rebut appellant's defensive theory. See Tex. R. Evid. 404(b); Powell, 63 S.W.3d at 439. Further, the trial court's limiting instructions to the jury show that the trial court admitted the evidence for a noncharacter conformity purpose. Powell, 63 S.W.3d at 439 (citing Tex. R. Evid. 105(a). We conclude that the trial court did not abuse its discretion by deciding that the evidence of the items found in Hartfield's purse was relevant and its relevance was apart from its character conformity. Appellant's third and fourth issues on appeal are decided against him. D. Probative Value Balanced Against Danger of Unfair Prejudice
In his fifth issue on appeal, appellant argues that, even if the extraneous offense evidence was relevant, it should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice. The State responds that the probative value of the evidence outweighs its prejudicial effect because appellant's connection to the items found in Hartfield's purse rebuts his claim of innocent intent and lack of motive. 1. Applicable Law
Once a trial court rules that the evidence is admissible under Texas Rule of Evidence 404(b), it may exclude that evidence if it determines that the probative value of the extraneous act is substantially outweighed by its danger of unfair prejudice. Feldman v. State, 71 S.W.3d 738, 754 (Tex.Crim.App. 2002); see Tex. R. Evid. 403. When a trial court balances the probative value of the evidence against its danger of unfair prejudice, a presumption exists that favors the evidence's probative value. Feldman, 71 S.W.3d at 754-55; Montgomery, 810 S.W.2d at 389. When reviewing extraneous offense evidence to determine if its probative value is substantially outweighed by its prejudicial effect, an appellate court should apply the four Montgomery-Mozon factors to the evidence. See Manning, 114 S.W.3d at 927-28. First, an appellate court should ask if the probative value of the evidence, either alone or in combination with other evidence, was compelling. See id. at 927; see also Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). Second, an appellate court should look at the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way. Manning, 114 S.W.3d at 927. Third, an appellate court should look at the amount of time the proponent of the evidence needed to develop that evidence and whether the jury was distracted from considering the indicted offense. See id. at 928. Finally, an appellate court should consider whether the proponent of the evidence had other probative evidence available that would help to establish the same fact and whether that fact relates to a disputed issue. Id. If the record reveals that one or more of these factors lead to a risk that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, then an appellate court should conclude that the trial court abused its discretion by admitting the evidence. Reese, 33 S.W.3d at 241. 2. Application of the Law to the Facts
Because we have determined that the evidence, if it was extraneous offense evidence, was admissible under Texas Rule of Evidence 404(b), we must now decide if its probative value is substantially outweighed by its danger of unfair prejudice. In so doing, we apply the Montgomery-Mozon balancing factors. a. Factor One-Degree of Relevance and Strength of Evidence
The first factor requires courts to evaluate to what degree the extraneous offense evidence was compelling. The items found in Hartfield's purse included cash, identification, credits cards, and checkbooks, which did not belong to appellant, Humphrey, or Hartfield. Similarly, identification, credit cards, the "antique" pesos, and jewelry were taken from the Barsenas brothers and found on appellant, Humphrey, and Hartfield. The evidence of the items found in Hartfield's purse tends to disprove appellant's statements that the Barsenas brothers gave him their property as "collateral" in exchange for drugs and that he did not need to rob anyone because he had money from selling drugs. Extraneous offense evidence has an inherent probativeness by reason of its similarity to the offense charged. See Karnes v. State, 127 S.W.3d 184, 192 (Tex.App.-Fort Worth 2003, no pet.). Based on the foregoing, we conclude the evidence is compelling. b. Factor Two-Irrational, Indelible Impression on Jury
The second factor requires courts to evaluate the potential of the extraneous offense evidence to irrationally impress the jury. A similar extraneous offense always carries the potential to create prejudice in the minds of the jury. Karnes, 127 S.W.3d at 193. While there was some risk that the jury would convict appellant because it believed Hartfield was carrying stolen items in her purse, appellant's testimony that he was previously arrested for theft and that he was a drug dealer created an even greater risk that the jury would convict him because he was a drug dealer and thief. In any case, any impermissible inference of character conformity created by the evidence should have been minimized through the trial court's limiting instruction to the jury. See id. (citing Lane v. State, 933 S.W.2d 504, 520 (Tex.Crim.App. 1996)). Given the nature of the evidence, we cannot conclude that it was inherently inflammatory or that it was likely to create such prejudice in the minds of the jury that it would have been unable to limit its consideration of the evidence to its proper purpose. See Karnes, 127 S.W.3d at 193 (citing Taylor, 920 S.W.2d at 323 and Montgomery, 810 S.W.2d at 397)). c. Factor Three-Time Needed to Develop Evidence
The third factor requires us to evaluate the time needed to develop the extraneous offense evidence, during which the jury may have been distracted from consideration of the indicted offense. The record of the guilt/innocence phase of the trial is approximately 229 pages in length. Detective Sanders' rebuttal testimony in the presence of the jury, including direct and cross-examination, comprises approximately nine and one-half pages of that record and her testimony during the hearing outside the presence of the jury is approximately three and one-half pages. Comparing the total number of pages in the record for the guilt/innocence phase of the trial with the number of pages representing Detective Sanders' rebuttal testimony, the record shows the State spent a relatively short period of time presenting the extraneous offense evidence. Evidence of the items found in Hartfield's purse was limited to testimony regarding the items found, identification of the names appearing on those items, and admission of those items into evidence. Although the guilt/innocence phase of the trial lasted approximately one and one-half days, the State spent the majority of its time proving the offenses charged in the indictment and presented the extraneous offense evidence to rebut appellant's testimony. See Karnes, 127 S.W.3d at 193. Also, the development of this evidence could not have distracted the jury from considering the indicted offense because the jury had already heard evidence that a driver's license, credit card and a check or bank card belonging to another person were found in the backseat of the Intrepid where appellant was sitting. See Manning, 114 S.W.3d at 928 (regardless of time spent presenting evidence, it could not have possibly distracted the jury from the indicted offense). d. Factor Four-State's Need for the Evidence
The fourth factor requires courts to evaluate the State's need for the extraneous offense evidence. At trial, appellant raised the defensive theory that he did not have the motive or intent to rob the Barsenas brothers. Appellant's defensive theory was that he was a drug dealer, the Barsenas brothers gave him their property as "collateral" for drugs, the Barsenas brothers reported a robbery to retaliate against him for selling them fake drugs, and he does not need to rob people because he makes a lot of money selling drugs. The record shows that during the State's case-in-chief, it presented other probative evidence, which tended to establish appellant's motive and intent. The Barsenas brothers stated appellant robbed them. A police officer stated a driver's license, credit card, and checkbook, which did not belong to appellant, were found in the backseat of the Intrepid where appellant was sitting. During appellant's case-in-chief, he testified he was previously arrested on two different occasions for stealing a car and evading arrest, and driving a stolen vehicle. The evidence of the items in Hartfield's purse was presented during the State's rebuttal to refute his defensive theory. This was the only evidence presented by the State to rebut appellant's testimony and defensive theory. Balancing the Montgomery-Mozon factors in this case, we conclude that the trial court did not abuse its discretion by deciding that the prejudice of the evidence of the items found in Hartfield's purse does not substantially outweigh its probative value. Appellant's fifth issue is decided against him. B. Harm Analysis
Assuming, without deciding, that the trial court erred by admitting evidence of the items found in Hartfield's purse, we review whether the error was harmless. Appellant argues the error was harmful because admission of the evidence had more than a slight influence on the jury's verdict. The State responds that the other evidence supporting appellant's guilt renders any error in admitting the evidence harmless. 1. Applicable Law
Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any error, other than constitutional error, that does not affect substantial rights must be disregarded. Tex.R.App.P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997); see Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). The erroneous admission of an extraneous offense is nonconstitutional error. Johnson v. State, 84 S.W.3d 729, 729 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); see Avila v. State, 18 S.W.3d 736, 741-42 (Tex.App.-San Antonio 2000, no pet.). An appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). A reviewing court may also consider the trial court's instructions to the jury, the State's theory, any defensive theories, and closing arguments. Id. 2. Application of the Law to the Facts
The record shows that there was ample evidence to support the verdict. The Barsenas brothers testified they were robbed and identified appellant as one of the robbers. The guns found by the police in the Intrepid matched the Barsenas brothers' description as the guns used during the robbery. The Barsenas brothers' property, with the exception of Antonio's wallet and shoes, was found on appellant and his companions. Also, the record demonstrates that the evidence of the items in Hartfield's purse comprised only a small portion of the evidence at trial. The jury also heard appellant testify that he had been arrested on two prior occasions for theft of a car and evading arrest, and driving a stolen vehicle. In addition, there is nothing in the record that indicates the State unduly emphasized the items found in Hartfield's purse. Further, the trial court included a limiting instruction in the jury charge. Assuming, without deciding, that the trial court erred on appeal, we conclude that any error was harmless respecting the evidence of the items found in Hartfield's purse. IV. SEVERANCE OF CODEFENDANTS' TRIAL
In his sixth issue on appeal, appellant argues the trial court erred by refusing to grant his motion for severance. The State responds that appellant waived his sixth issue on appeal. Also, the State responds that the trial court did not abuse its discretion because appellant did not present any evidence supporting his claim that he would be prejudiced by a joint trial. A. Failure to Preserve Error
The State argues appellant only objected to a joint trial with Humphrey on the day the trial began, failed to file a formal motion to sever, and failed to provide the trial court with any evidence that a joint trial would be prejudicial to appellant. Also, the State argues appellant failed to reassert his request for a severance when he learned Humphrey would not testify. 1. Applicable Law
Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an error for appellate review. Tex.R.App.P. 33.1. Pursuant to Rule 33.1, appellate review is waived unless the record shows appellant timely complained to the trial court stating the grounds for the ruling sought with sufficient specificity, unless the grounds were apparent from the context, and obtained a ruling on the complaint. Id. To preserve a complaint that the trial court abused its discretion by failing to order a severance, a defendant must make a timely motion to sever and introduce evidence. See Tex. Code Crim. Proc. art. 36.09 (Vernon 1981). A motion to sever based on unfair prejudice is timely if it is made at the first opportunity or as soon as the unfair prejudice becomes apparent. See Aguilar v. State, 26 S.W.3d 901, 910 (Tex.Crim.App. 2000). However, if a defendant fails to present evidence on his motion to sever, then he fails to properly preserve that error. See Ransonette v. State, 550 S.W.2d 36, 41 (Tex.Crim.App. 1976); see also Hudson v. State, 794 S.W.2d 883, 885 (Tex.App.-Tyler 1990, no writ). 2. Application of the Law to the Facts
The record shows that immediately before voir dire, the trial judge asked if either appellant or Humphrey objected to being tried jointly as codefendants. Appellant objected and requested that the trial court sever his case. When the trial court requested the legal basis for appellant's request for a severance, appellant responded that "he doesn't feel that it's in his best interest." No evidence was presented to the trial court to show that a joint trial with Humphrey would result in unfair prejudice to appellant. Also, the record shows that appellant did not file a formal motion to sever. Further, the record shows that during the trial, when it became apparent that appellant would testify and Humphrey would not, appellant failed to reassert his request for a severance. We conclude that appellant failed to properly preserve error because he failed to present any evidence on his objection to a joint trial with Humphrey and he failed to move for a severance when it became apparent Humphrey would not testify. Appellant's sixth issue on appeal is waived. Tex.R.App.P. 33.1. B. Harm Analysis
Assuming, without deciding, that the trial court erred and that the error was not waived on appeal, we will review whether the error was harmless. Appellant argues the error was harmful because his codefendant, Humphrey, failed to testify. According to appellant, Humphrey's failure to testify resulted in the jury's rejection of appellant's testimony. 1. Applicable Law
A nonconstitutional error that does not affect the substantial rights of the defendant must be disregarded. Tex.R.App.P. 44.2(b); Motilla, 78 S.W.3d at 355. The right to a severance is nonconstitutional error. See Llamas v. State, 12 S.W.3d 469, 471-72 (Tex.Crim.App. 2000). A criminal conviction should not be overturned for nonconstitutional error if an appellate court, after examining the record as a whole, has a fair assurance that the error did not influence the jury or had only a slight effect. Motilla, 78 S.W.3d at 355; Johnson, 967 S.W.2d at 417. If the codefendants were tried separately and the jury would have heard the same evidence, then any error created by the improper denial of a request for a severance is harmless and does to affect the defendant's substantial rights. See Rodriguez v. State, 90 S.W.3d 340, 358 (Tex.App.-El Paso 2001, pet. ref'd); Dominguez v. State, 62 S.W.3d 203, 208 (Tex.App.-El Paso 2000, pet. ref'd). 2. Application of the Law to the Facts
The asserted harm is that while appellant did testify, Humphrey decided not to testify. Appellant argues the jury did not believe his version of events because Humphrey did not testify and thereby corroborate appellant's version of the facts. We conclude that even if appellant and Humphrey had been tried separately, the jury would have heard appellant's testimony. There would not necessarily have been any corroboration of his testimony in that event. Assuming, without deciding, that the trial court erred and that the error was not waived on appeal, we conclude that any improper denial of appellant's request for a severance was harmless and did not affect his substantial rights. See Rodriguez, 90 S.W.3d at 358; Dominguez, 62 S.W.3d at 208. Appellant's sixth issue is decided adversely to him. IV. CONCLUSION
We conclude the evidence is factually sufficient. Also, we conclude that the trial court did not abuse its discretion by admitting evidence of extraneous transactions and assuming, without deciding, that the trial court did err, there was no harm. Further, we conclude appellant failed to preserve error based on the trial court's denial of his request for a severance and assuming, without deciding, that the trial court did err and that the error was not waived, there was no harm. The trial court's judgment is affirmed. Tex.R.App.P. 43.2(a).