Opinion issued August 29, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-01018-CR ——————————— AARON VILLAR, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas Trial Court Case No. 1276565
MEMORANDUM OPINION
A jury found Aaron Villar guilty of aggravated robbery with a deadly
weapon 1 and assessed his punishment at sixty years’ confinement and a $10,000
fine. In his sole appellate issue, Villar contends the trial court committed
1 See TEX. PENAL CODE ANN. § 29.03 (West 2011). reversible error by admitting an unadjudicated extraneous offense during the
guilt/innocence phase of the trial. We affirm.
BACKGROUND
The complainants in this case are elderly brothers Joe and John Amorelli.
The Amorellis, octogenarians both, were at their shared residence on August 22,
2010, when a man later identified as appellant rang the doorbell. Joe answered the
door and appellant asked for someone who did not live at the home. As Joe began
to step out to assist appellant, appellant burst through the screen door, knocked Joe
down, threatened him with a silver-plated gun and demanded money. Hearing a
commotion, John went to assist his brother, but appellant pushed him down as well
and demanded money. Appellant was accompanied by an unidentified, gun-
wielding accomplice.
The Amorellis testified that appellant was in their house for about ten
minutes and ran off with some cash and a small air compressor. John also testified
that appellant and his accomplice had backed their car into the Amorellis’
driveway “where they could take out quick.” When police arrived, the Amorellis
described appellant as a Hispanic male with shoulder-length, curly black hair,
medium build, wearing a black t-shirt. Harris County Sheriff’s Deputy Wallace
Wyatt investigated the robbery with his partner, Deputy Lisa McCool, and testified
that the Amorellis brothers both later identified appellant from a photo array.
2 Throughout trial, appellant’s defensive counsel sought to discredit the
identification of appellant by casting doubt on the Amorellis’ description of
appellant at the time of the robbery and their ability to identify appellant solely
from a photo array, as compared to a live lineup.2 Following appellant’s cross-
examination of Deputy Wyatt, the State sought to introduce evidence of an
extraneous offense to prove identity, arguing that the defense had opened the door
through its cross-examination of the Amorellis and Deputy Wyatt. While defense
counsel acknowledged that the main issue was identity, he argued that the
admission of the extraneous offense was unfairly prejudicial.
The trial court overruled appellant’s objection but before the State presented
testimony of the extraneous offense, the trial court instructed the jury that it could
only consider the other offense if it believed beyond a reasonable doubt that
appellant committed the offense, and then only for purposes of determining
“motive, opportunity, intent, preparation, plan, knowledge, identity . . . in
2 The line of questioning is summarized in appellant’s closing argument. Appellant argues
The issue here is Mr. Amorelli, John Amorelli, and Joe Amorelli. They made their decision from a photograph. They did not remember at the scene. And that can happen to anybody. A lot of people don’t remember what happens when a gun is put in their face or something like that.
But these gentlemen were elderly. They couldn’t remember things. That’s normal because they’re in their eighties. 3 connection with the offense . . . alleged against him in the indictment and for no
other purposes.” The jury charge contained a similar limiting instruction.
Called to testify about the extraneous offense were: Deputy Wyatt; Deputy
Lisa McCool; Charles Reece, a fingerprint expert; and Mitchell Castro, the
complainant in the extraneous offense case. Castro testified that nineteen minutes
prior to the Amorelli robbery, he reported an armed robbery at his residence,
approximately three miles from the Amorelli residence. As he stepped out onto his
porch, a black car backed up into his driveway and appellant, the passenger of the
vehicle, approached Castro and inquired about someone named Xavier. When the
driver of the vehicle joined appellant, they both pulled out guns and ordered Castro
into the house. Castro testified that appellant’s gun was “shiny, like, chrome.”
Once inside, appellant ordered Castro to lie on the floor, taking cash from his
wallet and yelling for more cash, jewelry, and a gun. On cross-examination,
Castro testified that appellant was in his house for only a couple of minutes.
Castro described the perpetrator to the 9-1-1 dispatcher and the responding
officers as between 5’9” and 5’10” with long, curly hair wearing a black t-shirt.
Investigators recovered four fingerprints from the scene—three of which belonged
to appellant. After noticing that the general description Castro provided matched
appellant, Deputy Lisa McCool compiled a photo array which included appellant’s
4 photo and showed it to Castro. At trial, Castro and Deputy McCool testified that
Castro identified appellant as his assailant from the array.
DISCUSSION
Appellant contends the trial court erred in admitting evidence of the
extraneous offense because identity was not at issue, the two offenses were not
sufficiently similar to the complaining witnesses’ description to establish a
signature or modus operandi, and the probative value of the evidence is
substantially outweighed by its potential for prejudice.
A. Standard of Review
We review a trial court’s admission of extraneous offense evidence under an
abuse of discretion standard. Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App.
2004); Jabari v. State, 273 S.W.3d 745, 751 (Tex. App.—Houston [1st Dist.] 2008,
no pet.). As long as the trial court’s ruling is within the zone of reasonable
disagreement, the court does not abuse its discretion, and we shall uphold its
ruling. Jabari, 273 S.W.3d at 751; Thomas v. State, 126 S.W.3d 138, 143 (Tex.
App.—Houston [1st Dist.] 2003, pet. ref’d).
B. Admissibility under Rule 404(b)
Comporting with the general rule that a defendant is not to be tried for a
collateral crime or for being a criminal generally, Rule 404(b) prohibits the
introduction of extraneous offenses at trial to prove a defendant’s character or to
5 show that the defendant acted in conformity with that character. TEX. R. EVID.
404(b); Page, 137 S.W.3d at 78; Jabari, 273 S.W.3d at 751. Extraneous offenses
may be admissible, however, when relevant to show proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
TEX. R. EVID. 404(b); Jabari, 273 S.W.3d at 751.
1. Identity at Issue
An extraneous offense may be admissible to prove identity only if the
identity of the perpetrator is at issue in the case. Page v. State, 213 S.W.3d 332,
336 (Tex. Crim. App. 2006); Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App.
1996). Identity may be placed at issue or in dispute through cross-examination of
the identifying witness. Thomas, 126 S.W.3d at 144. This occurs when the
identifying witness has been impeached about (1) a material detail of the
identification; (2) the conditions surrounding the charged offense and the witness’
identification of the defendant in that situation; or (3) an earlier misidentification
of the defendant. Id.; see also Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim.
App. 2002) (vigorous cross-examination can, by itself, place in issue a non-
conformity purpose under Rule 404(b)); Hudson v. State, 112 S.W.3d 794, 801
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (“In raising a defensive theory,
a defendant opens the door for the State to offer rebuttal testimony concerning an
extraneous offense if the extraneous offense has characteristics common with the
6 offense for which the defendant is being tried.”). When assessing the strength of
impeachment, the question is not whether the “impeachment was not particularly
damaging or effective in light of the evidence presented,” but rather “whether
impeachment occurred that raised the issue of identity.” Page, 137 S.W.3d at 79.
In this regard, the trial judge has considerable latitude in determining that identity
is, in fact, disputed and that the extraneous offenses are relevant to the issue of
identity. See id. at 78; Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim. App.
2008).
In the instant case, defense counsel expressly acknowledged that “this case
is an identity case. That is the main issue in this case.” In line with defense
counsel’s framing of the case, appellant went to great lengths during trial to test
whether the Amorellis’ identification of appellant was tainted in some way.
Appellant tried to establish that the Amorellis did not get a good look at the
robbers because they were fearful of being shot. Appellant also called into
question the Amorellis’ ability to confidently pick appellant from a photo lineup
when they could not give a more specific description of the suspect at the time of
the incident.3 Finally, in closing arguments, appellant reinforced these issues and
highlighted the Amorellis’ ages to raise doubt as to their credibility. See Segundo,
270 S.W.3d at 86 & n.11 (finding trial judge did not abuse her discretion in finding 3 John Amorelli conceded that his description of one of the perpetrators could fit “about 300 million people.”
7 that defendant raised issue of identity through his cross-examination, when issue of
identity was primary focus of defense’s closing arguments.) Whether the
challenge was to their capacity to observe (they were mistaken) or to their
truthfulness (they were lying), or both, the defense counsel’s questions implied that
the Amorellis’ identifications of appellant were not trustworthy. See Page, 137
S.W.3d at 78. Therefore, we conclude that the trial court did not abuse its
discretion in finding that appellant raised the issue of identity through his cross-
examination of the Amorellis. 4 See Siqueirios v. State, 685 S.W.2d 68, 71 (Tex.
Crim. App. 1985) (en banc) (evidence of similar extraneous offense admissible
because, inter alia, defense strategy was aimed at undermining witness’
identification of defendant).
2. Sufficiently Similar
Raising the issue of identity “does not automatically render evidence of an
extraneous offense admissible.” Jabari, 273 S.W.3d at 751 (citing Page, 213
S.W.3d at 336). “When the extraneous offense is introduced to prove identity by
4 Appellant contends that it was an abuse of discretion to find that identity was at issue based on the State’s initial argument at trial that the extraneous offense was necessary to show that the deputies had a reason to put appellant in a photo lineup. This argument is meritless. First, the State argued at trial that identity was at issue based on appellant’s cross-examination of the identifying witnesses, the Amorellis. Second, the trial judge has considerable latitude in determining that identity is in dispute and that the extraneous offenses are relevant to the issue of identity, regardless of counsel’s arguments. See Page v. State, 137 S.W.3d 75, 79 (Tex. Crim. App. 2004).
8 comparing common characteristics, it must be so similar to the charged offense
that the offenses illustrate the defendant’s ‘distinctive and idiosyncratic manner of
committing criminal acts.’” Page, 213 S.W.3d at 336 (quoting Martin v. State, 173
S.W.3d 463, 468 (Tex. Crim. App. 2008)). Extraneous offense evidence is
admissible to prove identity “when the common characteristics of each offense are
so unusual as to act as the defendant’s ‘signature.’” Page, 213 S.W.3d at 336
(quoting Taylor v. State, 920 S.W.2d 319, 322 (Tex. Crim. App. 1996)); see also
Johnson v. State, 68 S.W.3d 644, 650–51 (Tex. Crim. App. 2002) (“[T]o be
admissible to show identity, an extraneous offense must be so similar to the
charged offense as to mark the offenses as the defendant’s handiwork.”). The
“signature” must be apparent from a comparison of the circumstances in both
cases. Page, 213 S.W.3d at 336. The probative value of the extraneous offense
evidence is outweighed by its prejudicial effect unless there is a high degree of
similarity to the charged offense. Jabari, 273 S.W.3d at 752 (citing Bishop v.
State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993)). In reviewing the trial court’s
determination, we consider the specific characteristics of the offenses and the time
interval between them. Id. (citing Thomas, 126 S.W.3d at 144). “Sufficient
similarity may be shown by proximity in time and place or by a common mode of
committing the offenses.” Id. (citing Lane, 933 S.W.2d at 519).
The record reveals that the two robberies occurred within twenty minutes of
9 each other and had the following similarities: (1) they occurred within three miles
from each other; (2) they occurred at residences occupied by older complainants;
(3) both were aggravated robberies involving an unidentified accomplice; (4)
complainants from both robberies described one of the robbers as having curly,
long black hair and wearing a black t-shirt; (5) complainants from both robberies
identified appellant as one of the robbers; (6) the robbers backed their vehicle into
the complainant’s driveway; (7) the robbers asked for an unknown individual upon
making contact with the complainant; (8) the robbers forced their way into the
complainant’s home carrying a silver/chrome gun; and (9) the complainants were
pushed or forced to lie on the floor while the robbers searched for money or for
other items to steal.
In Harvey v. State, the Fourteenth Court of Appeals held that where an
accused used the same mode of commission in the charged offense and the
extraneous offense, committed both offenses in the same residential area, and
committed both offenses within an hour of each other, there was sufficient
similarity between the charged offense and the extraneous offense for the trial
court to admit the extraneous offense evidence to prove identity. 3 S.W.3d 170,
175 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Based on the identified
similarities, and consistent with Harvey, we hold that the facts and circumstances
of the extraneous offense are sufficiently similar to the charged offense that the
10 trial court’s decision to admit it in order to prove identity falls within the zone of
reasonable disagreement.
C. Admissibility under Rule 403
Even when the admission of extraneous offense evidence is permissible
under Rule 404(b), we must still determine whether the probative value of the
offense is substantially outweighed by the danger of unfair prejudice under Rule
403. TEX. R. EVID. 403; see Jabari, 273 S.W.3d at 752; Blackwell v. State, 193
S.W.3d 1, 15 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We consider the
following factors when conducting a Rule 403 analysis: (1) the strength of the
extraneous evidence to make a fact of consequence more or less probable (i.e.,
relevance); (2) the potential of the extraneous offense to impress the jury in some
irrational but indelible way; (3) the time during trial that the State needs to develop
evidence of the extraneous offense; and (4) the State’s need for the extraneous
offense evidence. Blackwell, 193 S.W.3d at 9 (citing Wheeler v. State, 67 S.W.3d
879, 888 (Tex. Crim. App. 2002)). We uphold the trial court’s ruling on a Rule
403 balancing test, whether explicit or implied, if it is within the zone of
reasonable disagreement. Jabari, 273 S.W.3d at 753.
Considering the first factor, given the similarities between the two offenses,
we agree with the trial court that the Castro robbery was highly relevant to the
issue of identity. The age of the complainants and their inability to provide a more
11 specific description of the perpetrator, coupled with doubt raised by identification
of the perpetrator via a photo array and the suggestion of impropriety by the police,
gave the State reason to develop extraneous offense evidence as to the perpetrator
of the robbery. The proximity of the Castro robbery and the similarity in the mode
in which it was carried out as compared to the Amorelli robbery make the
extraneous offense relevant to the issue of identity. See Jabari, 273 S.W.3d at 753
(finding that modus operandi of extraneous offenses which matched charged crime
made identification of suspect more probable where identifying witness was
impeached on issue of identity). Because this extraneous offense evidence makes
appellant’s identity as the perpetrator of the Amorelli robbery more probable, this
factor “weighs strongly in favor of admissibility.” Blackwell, 193 S.W.3d at 15.
The second factor requires that we examine the extraneous evidence “for its
potential to impress the jury in some irrational but indelible way,” such as
character conformity. Id. An impermissible inference of character conformity,
however, can be minimized by the use of a limiting instruction. Jabari, 273
S.W.3d at 753; Blackwell, 193 S.W.3d at 15 (“The trial court’s instructions to the
jury are a factor to consider in determining whether the jury considered the
extraneous-offense evidence improperly, i.e., as character conformity evidence, or
properly, as evidence to rebut a defensive theory or some other permissible reason
under rule 404(b).”). Here, the trial court instructed the jury that if it believed
12 beyond a reasonable doubt that Appellant committed the Castro robbery, it could
consider the Castro-robbery evidence for purposes of determining “motive,
opportunity, intent, preparation, plan, knowledge, identity . . . in connection with
the offense . . . alleged against him in the indictment and for no other purposes.”
The trial court included a substantially similar instruction in the written charge.
These instructions informed the jury that it could consider the Castro-robbery
evidence only for the purposes of establishing identity, and not for character-
conforming purposes. See Blackwell, 193 S.W.3d at 17 (“The jury here was
therefore adequately apprised that it could rely on the extraneous offense evidence
solely for other purposes than character-conformity evidence.”); see also Jabari,
273 S.W.3d at 753 (“Here, the trial court instructed the jurors to limit their
consideration of the extraneous offense evidence.”). This factor weighs in favor of
admissibility.
Next, we consider the amount of time taken at trial to develop evidence of
the extraneous offense. This factor focuses on the time needed “to develop the
evidence, during which the jury [is] distracted from consideration of the indicted
offense.” State v. Mechler, 153 S.W.3d 435, 441 (Tex. Crim. App. 2005).
Because the concern is the extent to which the jury is distracted from considering
the charged offense, we consider the time needed to develop all evidence relating
to the extraneous offense (e.g., cross-examination, redirect examination) and any
13 rebuttal testimony offered by the defense in response to the extraneous-offense
evidence. See Isenhower v. State, 261 S.W.3d 168, 179 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (considering direct, cross, and redirect examinations);
Lopez v. State, 200 S.W.3d 246, 253 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d) (considering testimony from extraneous-offense complainant, her father, and
defendant); Blackwell, 193 S.W.3d at 18 (considering testimony from extraneous-
offense complainants and two police officers). We do not, however, include
hearings conducted outside of the jury’s presence or jury argument. See Dennis v.
State, 178 S.W.3d 172, 181 n.2 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
Here, the time needed to develop the extraneous-offense evidence amounted
to about thirty-six percent of the testimony elicited during the guilt-innocence
phase of trial and consumed a full day of the two-day guilt-innocence phase. This
factor weighs in favor of exclusion. See Newton v. State, 301 S.W.3d 315, 321
(Tex. App.—Waco 2009, pet ref’d) (holding factor weighed in favor of exclusion
when evidence of extraneous offense amounted to approximately twenty-seven
percent of testimony at trial); Russell v. State, 113 S.W.3d 530, 546 (Tex. App.—
Fort Worth 2003, pet. ref’d) (holding same when evidence of extraneous offense
amounted to approximately thirty percent of trial testimony).
The final factor examines the State’s need for the evidence. Here, there was
no physical evidence linking appellant to the Amorelli robbery. There were no
14 other witnesses besides Joe and John Amorelli. With Joe’s and John’s testimony
impeached by the vigorous cross-examination by the defense, the extraneous-
offense evidence was significant to the State’s case to establish identity. This
factor favors admissibility of the extraneous evidence.
When we consider all four factors together, only the third factor (i.e., the
time spent developing the extraneous-offense evidence), weighs against
admissibility. Accordingly, we hold that the trial court did not abuse its discretion
in admitting evidence of the Castro robbery pursuant to Rule 403. See Hammer v.
State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (“[Rule 403] envisions
exclusion of evidence only when there is a ‘clear disparity between the degree of
prejudice of the offered evidence and its probative value.’”) (quoting Conner v.
State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).
CONCLUSION
We affirm the trial court’s judgment.
Jim Sharp Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).