Opinion issued December 17, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00229-CR ——————————— DANIEL TOOMBS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court Brazoria County, Texas Trial Court Case No. 96462-CR
MEMORANDUM OPINION
A jury convicted Daniel Toombs of aggravated robbery and sentenced him to
50 years’ confinement after finding the indictment’s enhancement paragraphs true.1
Toombs contends the trial court erred: (1) because there was insufficient evidence
1 See TEX. PENAL CODE § 29.03(a)(2)–(3)(A). to support his conviction; (2) by denying his motion for mistrial; and (3) by allowing
evidence of extraneous offenses during the guilt/innocence phase of the trial.
We hold there was sufficient evidence introduced at trial to support Toombs’s
conviction. But because the introduction of extraneous offenses was a harmful error
that affected Toombs’s substantial rights, we reverse and remand for a new trial.
Background
A. The Robbery of Smith’s Grocery Store.
One evening in June 2022, a masked man entered Smith’s Grocery Store in
Angleton and pointed a handgun at the attendant. The attendant opened the cash
register, and the robber removed about $600 from the drawer. The robber took the
attendant’s phone and fled the scene with the money from the register. The attendant,
who was 66 years old at the time, testified that he feared for his life during this
encounter. The attendant pressed a “panic button,” which alerted the police.
Corporal S. Slawson of the Angleton Police Department responded and spoke
with the attendant. The attendant, who was upset but uninjured, told Corporal
Slawson a male had entered the store with a gun, robbed him, and fled. Corporal
Slawson searched the area in the direction in which the robber fled but found nothing
of note. He returned to the store to take the attendant’s statement.
By the time Corporal Slawson returned to the store, other Angleton police
officers had arrived. Sergeant S. Wade began reviewing video from the store’s
2 security cameras. Based on the video footage and his conversation with the
attendant, Sergeant Wade developed a general description of the suspect as a “black
male wearing blue jeans and a jacket,” with a red shirt underneath the jacket. Another
officer, Detective Sergeant C. Land, testified that based on the video footage, the
suspect appeared to be about six feet two inches tall and wearing a mask, a cap, blue
gloves, a dark shirt, and red shoes, and he was carrying a pistol. Sergeant Land also
testified that the suspect’s pants “stuck out to [him] from the video in the store.”
As Corporal Slawson was returning to Smith’s Grocery after canvassing the
surrounding area, Sergeant Wade radioed him to let him know a black male named
D. Nelson had ridden a bicycle to the store, seeking to buy cigarettes. Nelson was
wearing a red shirt and long pants when he arrived. Corporal Slawson knew Nelson
before the Smith’s Grocery Store robbery as someone who lived in the area. Both
Corporal Slawson and Sergeant Wade talked to Nelson, but neither of them believed
he was a suspect. As Corporal Slawson was discussing Nelson with Segreant Wade,
he briefly muted his body cam’s microphone; he testified he could not recall the
substance of their muted discussion.
Because the Smith’s Grocery attendant had a language barrier preventing him
from communicating effectively with the officers, Corporal Slawson and Sergeant
Wade called the attendant’s son. The son used the “Find My iPhone” function on his
father’s phone to track it. Using that application, the officers searched the area and
3 found the phone on top of a storage container across the street from Smith’s Grocery
Store. They also found a pair of tie-died sweatpants, a pair of blue latex gloves, and
a mask on or near the container. Down the street, about 60 yards from the store, the
officers found two 20-dollar bills, a 50-dollar money band, and an empty plastic bag
from the store.
Sergeant Land later posted still photographs of the suspect, taken from the
store’s security camera footage, on the Angleton Police’s Facebook page. A few
days later, he was put in touch with M. Nichols, who lived a “couple houses down”
the street from Toombs at the time of the robbery. Sergeant Land was familiar with
Nichols because she had recently been arrested, along with Toombs, in a separate
incident.
Sergeant Land interviewed Nichols about the robbery, during which he
showed her the video footage from the surveillance cameras at Smith’s Grocery
Store. Nichols identified Toombs as the robber in the video. She testified that “the
day after Smith’s got robbed, he was still wearing the same clothes,” including
“some, like, acid-washed jeans,” a “camouflage jacket,” and “some red shoes.”
Nichols also told Sergeant Land she recalled seeing Toombs in “some tie-dye pants”
before the robbery, that she was “sure” she saw him wearing the pants the day after
the robbery, and that the pants the robber wore in the video were “identical to what
[Toombs] had on before and after” the robbery. In addition, Nichols told Sergeant
4 Land that Toombs had a distinctive gait when he walked, because he walks “like a
duck,” and she recognized the robber in the video as having Tombs’s “specific
walk.” Finally, Nichols testified that a female acquaintance of Toombs had the same
“purple gloves, the hair dying gloves,” as those being worn by the robber in the
video.
Nichols also testified that “it was well-known fact” in the area that the power
at Toombs’s house had been off before the robbery. The power was restored after
the robbery, and “that was a big deal.”
In addition to having been arrested with Toombs a short time before the
Smith’s Grocery robbery, Nichols testified she had been convicted two times
previously for theft, as well as for drug offenses.
Sergeant Land sent the items collected from the scene of the robbery to a
Texas Department of Public Safety crime lab for DNA analysis, along with a buccal
swab containing Toombs’s DNA. The lab conducted a comparative analysis of
Toombs’s DNA with the sweatpants taken from the scene of the robbery, which
revealed that the sweatpants contained a mixture of Toombs’s DNA and the DNA
of two other unknown individuals.
About two months after the robbery, Sergeant Land and other police officers
executed a search warrant for the house where Toombs had been living at the time
of the robbery. Land testified they were searching for the weapon used during the
5 robbery or clothing worn by the suspect in the video. The officers did not find either
of those things, nor did the search turn up any other evidence connecting Toombs to
the robbery. Sergeant Land testified they did not find purple gloves, red shoes, or a
red shirt during the search. Sergeant Land also testified that two other men lived at
the residence along with Toombs at the time of the robbery, but he never interviewed
them.
A grand jury indicted Toombs on an aggravated robbery charge. The
indictment contained enhancement paragraphs based on six prior felony convictions:
a 1988 conviction for aggravated robbery; a 1998 conviction for theft; a 1991
conviction for unauthorized use of a vehicle; a 1996 conviction for obstruction or
retaliation; a 2009 conviction for possession of a controlled substance; and a 2015
conviction for enticing a child.
While he was in jail awaiting trial, Toombs spoke by telephone with his
half-brother, C. Thomas. The call was recorded. During the call, Toombs asked
Thomas to “tell them we were watching a baseball game” the night of the Smith’s
Grocery Store robbery.
B. Trial Testimony About Extraneous Offenses.
During the guilt/innocence phase of the trial, the defense contended the State
failed to establish that Toombs, and not someone else, was the robber of Smith’s
Grocery Store. In response, the State sought to introduce evidence of other crimes,
6 wrongs, or acts in which Toombs had allegedly been involved to prove he was the
robber.
The extraneous offenses the State sought to introduce were the burglaries of
two laundromats. In July 2021, about 11 months before the Smith’s Grocery Store
robbery, two laundromats in Angleton had coins stolen from their laundry machines.
Drops of blood were found at both laundromats, and the DPS crime lab determined
the blood contained Toombs’s DNA. The State thus sought to introduce testimony
about the fact that Toombs’s DNA had been found at the scene of the earlier
laundromat burglaries. At trial, the State presented no evidence that Toombs was the
laundromat burglar, but only that his DNA was found at the laundromats.
The State nonetheless contended that evidence of the laundromat burglaries
was admissible to establish Toombs’s identity under the “Doctrine of Chances.”
According to the State, the Doctrine of Chances allows for the introduction of
extraneous offenses when they are “highly unusual events [that] are unlikely to
repeat themselves inadvertently or by happenstance.” The State argued before the
trial court that the “highly unusual event” involved here was the fact that Toombs’s
DNA had been found at three different crime scenes.
The State based this argument largely on Sergeant Land’s testimony. At a
hearing conducted outside the presence of the jury, Land testified that Toombs’s
DNA was found on both the sweatpants recovered from the Smith’s Grocery Store
7 robbery, as well as “at two different crime scenes also located in Angleton, Texas,”
both of which were laundromats. Sergeant Land also testified that finding the DNA
of one person at three different crime scenes would be “an unusual occurrence,” and
that he had worked “probably a good 1500 cases” during his career without ever
having encountered “the same person on three different ones.”
Defense counsel objected repeatedly to the introduction of extraneous offense
evidence under Texas Rules of Evidence 403 and 404. She argued that testimony
about the laundromat burglaries would not only confuse the jury but also have a
prejudicial effect that outweighed its probative value. In addition, defense counsel
argued the Doctrine of Chances was inapplicable because the laundromat burglaries
were dissimilar in nature to the robbery of Smith’s Grocery Store; here, “the highly
unusual [event] is basically the collection and finding of evidence by officers as to
[Toombs’s] DNA,” whereas “[t]he event that we should be focused on in the
Doctrine of Chances is the actual offense itself, not the location or the finding of
evidence by the detectives. . . . [T]here is no highly unusual event [in] a
smash-and-grab from a washateria or a robbery from a quickie mart.”
The trial court overruled the objections and allowed evidence that Toombs’s
DNA had been found at the laundromats. The trial court said that “[b]ased on the
officer testifying that in his almost 20-year career, he has come across only this
defendant showing—having DNA show up at three different crime scenes involving
8 property-type thefts, whether it’s thefts or robberies. So I think it could come in
under the Doctrine of Chances.” The trial court apparently based its ruling on the
idea that the Smith’s Grocery Store robbery and the laundromat burglaries were
similar in nature because they both involved thefts of property: “What I want to make
clear is that under the Doctrine of Chances [the extraneous offenses] are similar
somewhat in nature. We’re talking about theft offenses, property offenses.” The trial
court ultimately allowed the State to introduce a report indicating that Toombs’s
DNA had been found at the scenes of the laundromat burglaries, as well as testimony
from Sergeant Land concerning the report.
But the trial court instructed the State that in presenting its extraneous offense
evidence to the jury, it could not introduce details concerning the nature of the
laundromat burglaries; it could say only that Toombs’s DNA had been found at other
“crime scenes or investigations” in Angleton. The trial court said it wanted to use
“such a general term” to ensure any discussion of extraneous offenses was “limited
to the two that have the DNA that respond back to the defendant.” The trial court
continued, “what we’re all trying to do, is dance around what [Toombs] is charged
with by limiting it to just investigations. . . . If [the defense] start[s] making [the
State] go specific, then I’m going to allow them to open the door to the specific.”
The State was thus allowed to introduce evidence of the extraneous offenses,
so long as it confined the testimony to a discussion of “crime scenes” and
9 “investigations.” But before it did so, the trial court called the jury back into the
courtroom and read it a limiting instruction:
The defendant is on trial solely on the charge contained in the indictment. In reference to the evidence that is about to be admitted, if any, that the defendant has recently participated in recent transactions or acts other than but similar to that which is charged in the indictment in this case, you are instructed that you cannot consider such transaction or acts, if any, for any purpose unless you find and believe beyond a reasonable doubt that the defendant participated in such transactions or committed such acts, if any, and even then you may only consider the same for the purposes of determining intent or knowledge or identity or motive or common plan or scheme, if it does, and for no other purpose.
The State called Sergeant Land to the stand. Testifying in front of the jury, he
authenticated a report indicating Toombs’s DNA had been found at the scenes of the
laundromat burglaries. Land then testified he knew of “other investigations that
involve the defendant in this case.” When asked “how many other investigations
were you currently looking at with this defendant,” Land answered, “four.” Outside
the presence of the jury, defense counsel moved for a mistrial because, by referring
to “four” additional investigations, Land had raised extraneous offenses other than
the two laundromat burglaries. The trial court denied the mistrial.
Before the jury again, Sergeant Land next testified about the report. He noted
that it discussed two cases involving “swabs from the stain on the floor” that “came
back with the name on the bottom” of the report, referring to Toombs’s name. On
10 cross, Sergeant Land testified that the report was discussing “washateria burglaries.”
On redirect, he explained that a “washeteria theft” is “pretty much when they go in
and break into machines and take coins.” But Land also said he does not “know any
details in terms of time of day or anything like that with these washateria burglaries.”
Neither the State nor the defense introduced further evidence concerning the
laundromat burglaries. The jury did not hear any evidence about how or when they
were committed, or about how Toombs might have been involved, nor did it hear
any explanation for why Toombs’s DNA was present in the laundromats. All the
jury heard was that two laundromats had been burglarized and that Toombs’s DNA
was found at the scene.
The State called A. Falcone, a forensic scientist with the DPS crime lab, to
testify about the collection and analysis of DNA evidence. Falcone testified about
the reliability of the DNA evidence found on the sweatpants collected from Smith’s
Grocery Store, saying that the “probability of obtaining this mixture profile if the
DNA came from Daniel Toombs and two unrelated, unknown individuals is 5.42
quadrillion times greater than the probability of obtaining this profile if the DNA
came from three unrelated, unknown individuals.” The State then asked Falcone to
write the number 5.42 quadrillion on a board, alongside the number 8 billion, the
approximate population of the earth.
11 The State included the extraneous laundromat burglaries in its closing. It told
the jurors, Toombs’s “DNA is also at the crime scene of two other locations in this
city. Two other burglaries his DNA is also at. And you can use that to think, Well,
what seems more likely? That it was him wearing those pants that day that the
robbery took place or that it was some other random person nobody knows and his
DNA just happened to be on those pants that were left at the scene of that robbery?
Because you know that his DNA is at the scene of two other burglaries.” Later in its
closing, the State also told the jurors that “we heard about . . . how his DNA was in
other places, other crime scenes in this same city.” And it emphasized the reliability
of DNA evidence, saying “the DNA doesn’t lie. It doesn’t have agendas. It doesn’t
have biases. It’s either there or it’s not, and that’s a huge number.”
The jury found Toombs guilty of the aggravated robbery of Smith’s Grocery
Store and, after hearing evidence in the punishment phase of the trial, sentenced him
to 50 years in confinement. Toombs appealed.
Discussion
Toombs raises three issues on appeal. First, he argues there was insufficient
evidence to convict him. Second, he argues the trial court erred by allowing
extraneous offense evidence of the laundromat burglaries, which he contends was
both more prejudicial than probative and improper character evidence, such that it
12 should have been excluded under Texas Rules of Evidence 403 and 404. And finally,
Toombs argues the trial court erred by denying his motion for mistrial.
I. There Was Sufficient Evidence to Support Toombs’s Conviction.
Toombs argues first that there was insufficient evidence to support the jury’s
guilty verdict. His sufficiency argument focuses on the identification of the Smith’s
Grocery Store robber; he claims there was insufficient evidence at trial from which
a rational jury could have concluded he committed the crime.
A. Standard of Review.
We review a challenge to the sufficiency of the evidence, regardless of
whether it is denominated as a legal or factual sufficiency challenge, under the
standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard,
we review all the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the
charged offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Zuniga v.
State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018). When the trial court makes
findings of fact, we determine whether the evidence, viewed in the light most
favorable to the trial court’s ruling, supports these fact findings. See State v. Hardin,
664 S.W.3d 867, 872 (Tex. Crim. App. 2022). But “[w]e review legal conclusions,
such as the construction of a statute, de novo.” See id.
13 Viewing the evidence in the light most favorable to the verdict requires that
we consider all the evidence admitted at trial, including improperly admitted
evidence. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the
factfinder’s credibility and weight determinations because the factfinder is the sole
judge of the witnesses’ credibility and the weight to be given to their testimony. See
Winfrey, 393 S.W.3d at 768. The Jackson standard is deferential and accounts for
the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from the facts. See Jackson, 443 U.S. at 319; Zuniga,
551 S.W.3d at 732. We may not reevaluate the weight and credibility of the evidence
to substitute our judgment for that of the factfinder. See Leroy v. State, 512 S.W.3d
540, 543 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Instead, we determine
whether the necessary inferences are based on all the evidence presented at trial and
viewed in the light most favorable to the verdict. See Clement v. State, 248 S.W.3d
791, 796 (Tex. App.—Fort Worth 2008, no pet.). Therefore, if the record supports
conflicting inferences, we presume the factfinder resolved the conflicts in favor of
the verdict, and we defer to that determination. See Jackson, 443 U.S. at 326; Merritt
v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012).
We treat direct and circumstantial evidence equally under this standard. See
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Hooper v. State, 214
14 S.W.3d 9, 13 (Tex. Crim. App. 2007). It is not necessary that the evidence directly
prove the defendant’s guilt; circumstantial evidence is as probative as direct
evidence in establishing a defendant’s guilt, and circumstantial evidence can alone
be sufficient to establish guilt. See Carrizales v. State, 414 S.W.3d 737, 742 (Tex.
Crim. App. 2013) (citing Hooper, 214 S.W.3d at 13). Therefore, in evaluating the
sufficiency of the evidence, we must consider the “cumulative force of all the
evidence.” Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). Each fact
need not point directly and independently to guilt if the cumulative force of all
incriminating circumstances is sufficient to support the conviction. See Hooper, 214
S.W.3d at 13.
B. The Evidence Was Sufficient to Support the Jury’s Guilty Verdict.
A person commits robbery “if, in the course of committing theft . . . and with
intent to obtain or maintain control of the property, he . . . intentionally or knowingly
threatens or places another in fear of imminent bodily injury or death.” TEX. PENAL
CODE § 29.02(a)(2). A person commits aggravated robbery “if he commits
robbery . . . and he . . . uses or exhibits a deadly weapon; or . . . threatens or places
another person in fear of imminent bodily injury or death, if the other person
is . . . 65 years of age or older . . . .” Id. § 29.03(a)(2)–(3)(A).
Toombs contends the State failed to prove he committed the aggravated
robbery of Smith’s Grocery Store beyond a reasonable doubt because the weight of
15 the evidence does not point to him as the robber. Toombs argues the robber’s identity
remains in question because: (1) the Smith’s Grocery Store attendant did not identify
him as the perpetrator at trial; (2) Nichols, Toombs’s neighbor, was not a credible
witness; (3) the sweatpants taken from the scene of the robbery contained not only
Toombs’s DNA but also the DNA of two other unidentified individuals; (4) no DNA
sample was taken from Nelson, the man who appeared at Smith’s Grocery Store the
night of the robbery matching the description of the perpetrator; and (5) the police
did not find a gun when they searched Toombs’s residence. According to Toombs,
these five points “overwhelmingly outweigh[]” the evidence supporting the jury’s
conviction.
Toombs is correct that the Smith’s Grocery Store attendant did not identify
him as the robber. But Nichols, Toombs’s neighbor, did. Nichols testified that she
recognized the clothes Toombs was wearing in the video of the robbery, including
his pants and gloves, as well as Toombs’s distinctive walk. And “[i]t is well-
established that a conviction may be based on the testimony of a single eyewitness.”
Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.)
(affirming conviction for aggravated robbery where central issue involved witness’s
credibility).
A rational jury also could have concluded that the attendant’s failure to
identify Toombs as the robber was understandable. The attendant testified he feared
16 for his life during the robbery, and footage from the store’s cameras, which the jury
saw, showed the robber wearing a mask, gloves, and a hat. The jury reasonably could
have attributed the attendant’s inability to identify the suspect to the duress he was
under, coupled with the fact that the robber was wearing a mask and a hat. See
Neighbors v. State, No. 2-07-176-CR, 2008 WL 2404437, at *4 (Tex. App.—Fort
Worth June 12, 2008, pet. ref’d) (mem. op., not designated for publication)
(upholding aggravated robbery conviction against sufficiency challenge
notwithstanding that victim could not identify perpetrator because other evidence
showed “a rational trier of fact could have found beyond a reasonable doubt that
appellant committed aggravated robbery”).
Circumstantial evidence also supports the jury’s determination that Toombs
robbed Smith’s Grocery Store. See Temple v. State, 390 S.W.3d 341, 360 (Tex.
Crim. App. 2013) (“Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt.” (citation and internal quotation marks omitted)). For example,
Nichols testified that while before the robbery “none of them [living at Toombs’s
residence] had any money” and the electricity at his house had been turned off, after
the robbery their power was restored, “they were all bragging” about the power being
restored, and “[a]ll of a sudden everybody was just doing so good.”
17 Toombs’s contention that Nichols was not a credible witness does not require
a different result. Toombs points out that Nichols had prior drug and theft
convictions, and that she had previously been to jail and prison. But the jury knew
about those convictions and credited Nichols’s testimony nevertheless. We may not
disturb either the jury’s determination of Nichols’s credibility or the weight it gave
to her testimony. A “reviewing court must defer to the jury’s credibility and weight
determinations because the jury is the sole judge of witness’ credibility and the
weight to be given testimony.” Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim.
App. 2021) (citation and internal quotation marks omitted).
Nor is our conclusion changed because Nichols’s testimony diverged at times
from other evidence presented at trial. See McIntosh v. State, 855 S.W.2d 753, 763
(Tex. Crim. App. 1993) (“The jury, not this Court, may accept one party’s statement
of facts over another party, disbelieve one party’s evidence even if uncontroverted,
and resolve any inconsistencies in favor of one party over the other.”). For instance,
Nichols testified she saw Toombs wearing the same pants as the robber both before
and after the robbery, while Sergeant Land testified he collected the pants from the
scene of the robbery on the night it occurred. And while Nichols testified that the
electricity at Toombs’s house had been off before the robbery but was restored after
it, Thomas, who also lived at the house, testified that the electricity had not been off
at all that summer. To the extent there were inconsistencies in this testimony, it was
18 for the jury to resolve them, and in reviewing a conviction “we must presume the
trier of fact resolved any conflict in favor of the prosecution.” Garcia v. State, No.
01-00-00886-CR, 2001 WL 1199873, at *2 (Tex. App.—Houston [1st Dist.] Oct.
11, 2001, no pet.) (not designated for publication) (citing Turro v. State, 867 S.W.2d
43, 47 (Tex. Crim. App. 1993)); accord Bryant v. State, No. 14-15-00819-CR, 2016
WL 4705157, at *4 (Tex. App.—Houston [1st Dist. Sept. 8, 2016, pet. ref’d) (mem.
op., not designated for publication) (“[T]he fact that there may be inconsistent
evidence regarding the clothing worn by the robbers does not render the evidence
insufficient as we presume the trier of fact resolved any conflicts in the evidence in
favor of the State.” (citing Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007)).
Moreover, Nichols’s testimony was not the only evidence at trial from which
the jury could have concluded Toombs was the Smith’s Grocery Store robber. His
DNA was found on the sweatpants recovered from the scene, along with the victim’s
cell phone and other items from the store. And the jury heard testimony from
Toombs’s half-brother that Toombs had asked him to say he had an alibi for the
night of the robbery, namely, that the two of them were watching a baseball game
together. Cf. Longoria v. State, 154 S.W.3d 747, 757 (Tex. App.—Houston [14th
Dist.] 2004, pet. ref’d) (“[A]n attempt to procure a false alibi is some evidence of
guilt”); accord King v. State, No. 01-23-00094-CR, 2024 WL 1220546, at *7 (Tex.
19 App.—Houston [1st Dist.] Mar. 21, 2024, pet. pending) (mem. op., not designated
for publication) (“Lying to police officers is conduct showing a consciousness of
guilt and may be considered as circumstantial evidence of guilt.”).
Toombs’s remaining sufficiency arguments likewise do not outweigh the
evidence presented at trial identifying him as the Smith’s Grocery Store robber. That
other persons’ DNA was found on the sweatpants taken from the crime scene does
not outweigh the fact that Toombs’s DNA was also found on them. And the State’s
decision not to further investigate other leads does not negate the evidence
introduced at trial from which a jury rationally could have determined that Toombs
was the Smith’s Grocery Store robber. While Toombs relies on these perceived
weaknesses in discrete pieces of evidence, in a sufficiency challenge we must look
at the “cumulative force of all the evidence.” Merritt, 368 S.W.3d at 526. Viewing
all the evidence in the light most favorable to the verdict, we conclude that a rational
jury could have found beyond a reasonable doubt that Toombs committed the
aggravated robbery of Smith’s Grocery Store. See Babcock v. State, 501 S.W.3d 651,
654 (Tex. App.—Eastland 2016, pet. refused) (“The standard of review for
sufficiency of the evidence is whether any rational jury could have found [the
defendant] guilty beyond a reasonable doubt.” (citing Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010)). We overrule Toombs’s first issue.
20 II. The Trial Court Erred by Allowing Extraneous Offense Evidence.
In his second issue, Toombs contends the trial court erred by permitting the
introduction of evidence concerning the extraneous laundromat burglaries. He
argues this evidence was impermissible character-propensity evidence, and that it
was more prejudicial than probative.
We review a trial court’s decision to admit extraneous offense evidence under
the abuse of discretion standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.
App. 2011). A trial court’s ruling to admit extraneous offense evidence will be
upheld if it is “within the zone of reasonable disagreement.” Fowler v. State, 544
S.W.3d 844, 848 (Tex. Crim. App. 2018).
A trial court’s ruling on extraneous offense evidence is generally within the
zone of reasonable disagreement “if the evidence shows that 1) an extraneous
transaction is relevant to a material, non-propensity issue, and 2) the probative value
of that evidence is not substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.” De La Paz v. State, 279 S.W.3d 336,
344 (Tex. Crim. App. 2009). We uphold an evidentiary ruling under any applicable
theory of law, “even if the trial judge gave the wrong reason for his right ruling.” Id.
(citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982)).
21 B. Rule 404(b) and the Admission of Extraneous Offense Evidence.
“The general rule is that the defendant is to be tried only for the offense
charged, not for any other crimes or for being a criminal generally.” Segundo v.
State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008). This principle is captured in Texas
Rule of Evidence 404(b)(1): “Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.”
Rule 404(b)(1) thus prohibits extraneous offense evidence when offered to
prove a person’s character, from which the trier of fact is to infer the person acted in
conformity with that character trait on the occasion in question. See Montgomery v.
State, 810 S.W.2d 372, 387–88 (Tex. Crim. App. 1990) (op. on reh’g). The Texas
Court of Criminal Appeals uses this hypothetical example to illustrate the rule’s
application: “in an injury to a child prosecution, the State might wish to offer other
instances in which the defendant beat this or another child to prove he is a ‘chronic
child abuser.’ The jury would then be invited to infer that, because the defendant is
a chronic child abuser, he abused the child on this charged occasion. That is precisely
the character-propensity purpose prohibited by Rule 404(b).” Johnston v. State, 145
S.W.3d 215, 219 (Tex. Crim. App. 2004).
But extraneous offense evidence is not categorically inadmissible; it “may be
admissible for other purposes, such as proof of motive, opportunity, intent,
22 preparation, plan, knowledge, identity, or absence of mistake or accident.” TEX. R.
EVID. 404(b)(2). Therefore, when a defendant’s identity as the perpetrator of the
crime is at issue, using extraneous offense evidence to establish his identity may be
allowed. See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006).
Simply placing identity at issue does not, by itself, make extraneous offense
evidence admissible. See Jabari v. State, 273 S.W.3d 745, 751 (Tex. App.—Houston
[1st Dist.] 2008, no pet.) (raising the issue of identity “does not automatically render
evidence of an extraneous offense admissible”). It still must be admissible under
Rule 404(b)—that is, it must be introduced for the purpose of establishing a
defendant’s identity (or for one of the other permissible purposes listed in the Rule),
rather than for character-propensity purposes. TEX. R. EVID. 404. Extraneous
offense evidence is thus admissible under Rule 404(b) only if it is “relevant to a fact
of consequence in the case apart from its tendency to show action in conformity with
character.” Johnston, 145 S.W.3d at 220.
The Doctrine of Chances also informs the extent to which extraneous offenses
can be used to prove identity. See Evans v. State, No. 12-14-00053-CR, 2015 WL
3609085, at *2 (Tex. App.—Tyler June 10, 2015, pet. ref’d) (mem. op., not
designated for publication) (“[T]he ‘[D]octrine of [C]hances’ may also come into
play when using extraneous offenses to prove identity”). The Doctrine of Chances
recognizes that highly unusual events are unlikely to repeat themselves inadvertently
23 or by happenstance. See Carrizales v. State, 414 S.W.3d 737, 745 (Tex. Crim. App.
2013) (where vehicle tires were time and again punctured by distinctive type of metal
roofing screws repeatedly placed in same spot on roadway near defendant’s
driveway, the trial court could “reasonably apply Wigmore’s ‘[D]octrine of
[C]hances’ to these facts to conclude . . . that the tire damage was caused by [the
defendant’s intentional act] rather than by an inadvertent accident”).
For the Doctrine to apply, there must be a similarity between the charged and
extraneous offenses, because it is the “improbability of a like result being repeated
by mere chance that gives the extraneous offense its probative weight.” Brown v.
State, 96 S.W.3d 508, 512 (Tex. App.—Austin 2002, no pet.). Indeed, the degree of
similarity between the characteristics of the extraneous offenses and those of the
charged offense must be so great that they 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. 2005)). The
common characteristics must be “so unusual as to act as the defendant’s ‘signature,’”
and the “signature must be apparent from a comparison of the circumstances in both
cases.” Mason v. State, 416 S.W.3d 720, 740 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d).
Without this high degree of similarity, “the probative value of the extraneous
offense evidence is outweighed by its prejudicial effect.” Jabari, 273 S.W.3d at 752
24 (citing Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. App. 1993) (“The
traditional rule in regard to the admission of extraneous acts for the purpose of
showing identity is that the acts sought to be admitted must be so similar to the
offense charged that the accused’s acts are marked as his handiwork, that is, his
‘signature’ must be apparent from a comparison of circumstances in both cases.”)).
And “[e]vidence of an extraneous act which is sought to be admitted for the purpose
of proving identity must demonstrate a much higher degree of similarity to the
charged offense than extraneous acts offered for other purposes such as intent.”
Bishop, 869 S.W.2d at 346.
Common characteristics that might make extraneous offenses similar to the
charged offense include “proximity in time and place, mode of commission of the
crimes, the person’s dress, or any other elements which mark both crimes as having
been committed by the same person.” Segundo v. State, 270 S.W.3d 79, 88 (Tex.
Crim. App. 2008) (providing, as an example, “three bank robberies are committed
over a four-year period in different cities in which the robber used an antique silver
crossbow”). The extraneous offense evidence need not be completely identical to the
charged offense to be probative, but “generic” similarities will not constitute a
“signature crime” sufficient to allow its introduction. Id.
25 C. The Trial Court Abused Its Discretion by Allowing Evidence of the Extraneous Laundromat Burglaries.
Toombs’s identity as the perpetrator of the Smith’s Grocery Store robbery was
at issue during trial. See Page, 213 S.W.3d at 336 (“An extraneous offense may be
admissible to show identity only when identity is at issue in the case.”). Therefore,
the question before us is whether the trial court erred under Rule 404(b)(1) by
admitting evidence of the extraneous laundromat burglaries. That question turns in
large part on the degree of similarity between the charged crime (the aggravated
robbery of Smith’s Grocery Store) and the extraneous offenses (the laundromat
burglaries). See Mason, 416 S.W.3d at 740; Jabari, 273 S.W.3d at 752.
In our view, there was virtually no similarity between them. In fact, there was
no evidence presented to the jury that would show a meaningful relationship between
the crimes, or even that Toombs had any involvement whatsoever in the
unadjudicated laundromat burglaries. To be sure, a crime lab report indicated
Toombs’s DNA was found at the laundromats. But that establishes nothing more
than that Toombs was at a public laundromat at some point. There is nothing in the
record, and the State presented nothing to the jury, to suggest Toombs committed a
crime at the laundromats, that he stole coins from the laundry machines, or that he
did anything other than enter the facility. In short, there was no evidence that
Toombs was involved at all in the laundromat burglaries, and certainly no evidence
26 to illustrate Toombs’s “distinctive and idiosyncratic manner of committing criminal
acts.” Page, 213 S.W.3d at 336.
Based on the scant information about them in the record, the laundromat
burglaries were different from the Smith’s Grocery Store robbery. The laundromat
burglaries apparently were covert thefts of coins by a perpetrator who did not interact
with any laundromat staff, whereas the Smith Grocery Store robbery was an armed
robbery in which a masked perpetrator held a gun and forced the store’s attendant to
open a cash register drawer so he could take its contents. There was no blood found
at the scene of the Smith’s Grocery Store robbery. And the laundromat burglaries
took place 11 months before the Smith’s Grocery Store robbery. There is no
“signature” characteristic of the laundromat burglaries that would indicate they were
committed by the Smith’s Grocery Store robber. Cf. Segundo, 270 S.W.3d at 88
(characteristics such as “proximity in time and place, mode of commission of the
crimes, [and] the person’s dress” may be useful in showing the criminal’s
“signature”).
The State’s reliance on the Doctrine of Chances to show otherwise is
misplaced. The State points to Sergeant Land’s testimony that Toombs’s DNA was
found at all three crime scenes, and that in his nearly 20 years as an Angleton police
officer Sergeant Land had never encountered that situation. According to the State,
this testimony implicates the Doctrine of Chances because “[t]he cases were unusual
27 in that the perpetrator left a recoverable amount of DNA at various scenes.” But
there is nothing unusual about the fact that Toombs’s DNA was found in a public
place; by itself, that evidence establishes nothing more than that Toombs was one of
the many people who entered the laundromats. It does not link him to the laundromat
burglaries, and it is not the “unusual or abnormal element” necessary for the Doctrine
of Chances to apply. Brown, 96 S.W.3d at 512.
Sergeant Land’s experiences with collecting evidence from multiple crime
scenes are also not the “common similar characteristics” contemplated by the
Doctrine of Chances. Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987).
The Doctrine of Chances refers to some unique characteristic inherent to the crimes
themselves—rather than investigations of the crimes—that makes them so peculiar
that the idiosyncrasy could not have been replicated by chance. “This is ‘the mark
of Zorro’ mode of proving identity; it is a remarkably unusual fact, in which a single
detail suffices to establish identity.” Segundo, 270 S.W.3d at 88. Toombs’s DNA
being found in a public place is not the “mark of Zorro” or “remarkably unusual
fact” necessary to justify the introduction of extraneous offense evidence. Id.
The trial court’s belief that a sufficient degree of similarity was established by
the fact that both the Smith’s Grocery robbery and the laundromat burglaries were
“property crimes” was also in error. That three offenses all fall into the general
category of property crimes is at best a “generic” similarity against which the Texas
28 Court of Criminal Appeals has warned as a basis for allowing extraneous offense
evidence. See id. (“But if the similarities are ‘generic,’ i.e., typical to this type of
crime, they will not constitute a ‘signature’ crime.”).
Given the lack of any meaningful relationship between the laundromat
burglaries and the Smith’s Grocery Store robbery, let alone the lack of any evidence
of similarities between them, allowing the introduction of extraneous offense
evidence of the laundromat burglaries to establish Toombs’s identity as the
perpetrator of the Smith’s Grocery Store robbery violated Rule 404(b)(1). Rule
404(b)(1) requires that extraneous offense evidence have “probative value beyond
character conformity.” Blackwell v. State, 193 S.W.3d 1, 13 (Tex. App.—Houston
[1st Dist.] 2006, pet. ref’d). But here, the State failed to establish Toombs had any
involvement in the laundromat burglaries, let alone that he committed them. There
was nothing about the extraneous laundromat offenses that would help to establish
Toombs’s identity as the Smith’s Grocery Store robber. Therefore, the laundromat
burglaries had little if any probative value beyond their ability to show Toombs’s
propensity to steal, and thus, they were barred by Rule 404(b)(1).
Nor could the trial court’s limiting instruction cure this error. A limiting
instruction is not sufficient to cure error when the testimony “is clearly calculated to
inflame the minds of the jury and is of such a character to suggest the impossibility
of withdrawing the impression produced on the jurors’ minds.” Castillo v. State, 865
29 S.W.2d 89, 93–94 (Tex. App.—Corpus Christ-Edinburg 1993, no pet.). Considering
the “inherently prejudicial” nature of extraneous offense evidence, McGee v. State,
725 S.W.2d 362, 366 (Tex. App.—Houston [14th Dist.] 1987, no pet.), coupled with
the State’s emphasis of the laundromat burglaries during closing arguments and its
remark that “the DNA doesn’t lie,” the trial court’s limiting instruction was
incapable of “withdrawing the impression produced on the jurors’ minds.” Castillo,
865 S.W.2d at 93–94.
D. Admission of the Extraneous Offense Evidence Was Harmful.
Finding error in the admission of evidence, however, does not end our
analysis. We review the erroneous admission of extraneous offense evidence as non-
constitutional error under Texas Rule of Appellate Procedure 44.2(b). See Rodriguez
v. State, 546 S.W.3d 843, 860 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d).
Under Rule 44.2(b), we disregard the error unless it affected the appellant’s
substantial rights. See TEX. R. APP. P. 44.2(b). A substantial right is affected when
the error had a substantial and injurious effect or influence in determining the jury’s
verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). But an error does not affect
a substantial right if we have “fair assurance that the error did not influence the jury,
or had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.
2001). We must examine whether the evidence had significant potential “to lure the
30 factfinder into declaring guilt on a ground different from proof specific to the offense
charged.” Old Chief v. United States, 519 U.S. 172, 180 (1997).
As mentioned, extraneous offense evidence is “inherently prejudicial.” Plante
v. State, 692 S.W.2d 487, 494 (Tex. Crim. App. 1985) (citation and internal
quotation marks omitted). And we cannot discount the likelihood that Toombs’s
DNA being found at the laundromat burglaries had a palpable effect on the jury.
Indeed, the reliability of DNA evidence and the unadjudicated extraneous offenses
became a theme of the State’s closing. The State emphasized the reliability of DNA
evidence during its closing, saying “the DNA doesn’t lie.” The State told the jury
that Toombs’s DNA had been found on the sweatpants worn by the Smith Grocery
Store robber. And it also told the jury that Toombs’s “DNA [was] at two other crime
scenes” and “you know that his DNA [was] at the scene of two other burglaries”—
the implication being that if Toombs’s DNA was found at the laundromats and in
the sweatpants, Toombs had committed the burglaries and the robbery.
The prejudicial impact of the extraneous offense evidence is also shown by
the weaknesses in the evidence identifying Toombs as the robber during the
guilt/innocence phase of the trial. The Smith’s Grocery Store attendant did not
identify Toombs as the robber, the video footage from the store’s surveillance
cameras did not allow the jury to identify Toombs as the robber, Toombs never made
a confession, and Nichols’s testimony was impeached on multiple points. As a result,
31 the question of Toombs’s identity as the Smith’s Grocery Store robber came down
to two things: (1) whether the jurors believed Nichols’s testimony identifying
Toombs as the robber; and (2) whether they believed, based on the extraneous
offense evidence, that the Smith’s Grocery Store robber was the same person as the
laundromat burglar. We cannot say, with fair assurance, that the verdict was not
substantially swayed by the error in admitting the extraneous offense evidence, given
the significance the State placed on it and the weaknesses in the State’s identification
evidence. See Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001) (discussing
substantial-harm standard).
We acknowledge that there was other evidence supporting an inference that
Toombs committed the Smith’s Grocery Store robbery, including the testimony from
Thomas, Toombs’s half-brother, that Toombs had asked him to say they were
watching a baseball game together the night of the robbery. But as the United States
Supreme Court has noted, our substantial-harm inquiry cannot be merely whether
there was enough evidence of guilt to support the judgment of conviction, apart from
the error. Kotteakos, 328 U.S. at 764–65. Rather, the inquiry is “‘whether the error
itself had substantial influence,’” and, “‘[i]f so, or if one is left in grave doubt, the
conviction cannot stand.’” Johnson, 43 S.W.3d at 4 (quoting and applying
Kotteakos, 328 U.S. at 764–65).
32 Because admission of the laundromat burglary evidence likely had a
substantial effect on the verdict due to the State’s emphasis on the evidence and the
way the State incorporated it into its trial and closing theme without overwhelming
evidence of Toombs’s guilt, we conclude Toombs satisfied the substantial-harm
standard. For these reasons, we sustain Toombs’s second issue.
Conclusion
We conclude there was sufficient evidence to support the jury’s decision to
convict Toombs for the aggravated robbery of Smith’s Grocery Store. But because
the trial court abused its discretion in admitting evidence of the extraneous,
unadjudicated laundromat burglaries, and because that error was harmful, we reverse
the trial court’s judgment and remand for a new trial. Given our resolution of this
issue, we need not reach Toombs’s remaining argument attacking the extraneous
offenses under Rule 403 or his third issue challenging the trial court’s ruling on his
motion for mistrial. See TEX. R. APP. P. 47.1.
Sarah Beth Landau Justice
Panel consists of Justices Kelly, Landau, and Rivas-Molloy.
Do not publish. TEX. R. APP. P. 47.2(b).