Michael Lee Trevino v. State

• Court: Court of Appeals of Texas
• Decided: October 15, 2009
• Docket: 01-08-00427-CR
• Status: Published

Opinion

Opinion Issued October 15, 2009

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-08-00426-CR

01-08-00427-CR

01-08-00428-CR

MICHAEL LEE TREVINO, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause Nos. 47814; 47815; 46234

MEMORANDUM OPINION

Appellant, Michael Lee Trevino, appeals a judgment that convicts him for the aggravated robbery of Maria Muskrella in appellate cause number 01-08-00426-CR, which is trial court cause number 47814; a judgment that convicts him for the aggravated robbery of William Ransdell (hereinafter "Bill") in appellate cause number 01-08-00427-CR, which is trial court cause number 47815; and a judgment that convicts him for the aggravated robbery of Michael Muskrella, Jr. (hereinafter "Michael Anthony") in appellate cause number 01-08-00428-CR, which is trial court cause number 46234. See Tex. Penal Code Ann. § 29.03 (Vernon 2003). Appellant pleaded not guilty to each offense before a single jury. The jury found him guilty of each offense and determined his sentence at 18 years in prison for each of the cases. The trial court ordered the sentences to run concurrently. In four issues that pertain to each of the three appeals, appellant contends the evidence is legally and factually insufficient to support his convictions; the trial court erred by including an instruction on the law of parties in the jury charges; and the trial court erred by admitting extraneous offense evidence. We conclude the evidence is legally and factually sufficient to support appellant's convictions; the trial court properly instructed the jury on the law of parties; and the trial court did not err by admitting the extraneous evidence. We, therefore, affirm.

Background

On February 2, 2007, Michael Muskrella, Sr. (hereinafter "Michael Thomas") and his family, including his wife Maria, his son Michael Anthony, and his daughter Patricia Muskrella, ate dinner with Bill and Patty Ransdell at Los Flores restaurant in Fulshear, Fort Bend County, Texas. After dinner, the Muskrellas and Ransdells left the restaurant at around nine in the evening. While walking back to the Ransdell home, a group of men approached the Muskrellas and Ransdells. All the assailants except one wore either a black or red bandana on his face and several wore black or red hoodies. Michael Anthony saw that two of the men had guns.

The men ordered the Muskrellas and Ransdells to get down on the ground and asked if they wanted to die. Complying with the order to get on the ground, Michael Anthony assumed a prostrate position, directly facing the shoes worn by an assailant. Michael Anthony described the shoes as "unmistakable" because they were "bright shiny red smooth high-top shoes." After Michael Anthony took his wallet out of his pocket, an assailant proceeded to go through Michael Anthony's pockets and belongings.

The assailants worked together in taking property from the complainants. One assailant took Maria's purse. An assailant held what Bill perceived as a gun towards Bill's face and said, "Give me your money. Do you want to die?" That person kicked Bill to the ground. Another assailant put his knee on Bill's back, and then pulled Bill's wallet and checkbook out of his back pocket. The assailants then told Bill to get up and run, but when he did, the assailants kicked him in his kidney region, causing him to fall back to the ground. One of the assailants put an automatic pistol to Michael Thomas's head. Michael Thomas pushed the gun away from his temple. One of the assailants told Patricia to give him her purse. As the assailant lifted the purse from her arm, he touched her arm. Michael Anthony, Maria, and Bill each stated that they feared the assailants would kill all the Muskrellas and Ransdells. Deputies Delgado and Gammon of the Fort Bend County Sheriff's Office received a dispatch to assist in the investigation of an aggravated robbery. Upon arriving at the scene, Deputies Delgado and Gammon learned the details of what happened to the Muskrellas and Ransdells, and left the scene to check out the surrounding area. Approximately one block from the scene of the robbery, Deputies Delgado and Gammon came across Brandon Thomas and appellant, who was wearing bright red shoes that matched the description of the shoes described by Michael Anthony. Appellant and Thomas said they were on the way to a convenience store located next to the Los Flores restaurant.

When Deputy Delgado asked appellant and Thomas how they were going to pay for their purchases, appellant responded that he had money in his pocket and allowed Deputy Gammon to retrieve the money. Thomas also responded that he had money in his pocket and allowed Deputy Delgado to retrieve it from his pocket. The money retrieved from the pockets of appellant and Thomas matched the amount of money the Muskrellas and the Ransdells stated had been taken from them by the assailants. The denominations of the money, including a $2 dollar bill, also matched. Scent swabs later demonstrated that the money in appellant's and Thomas' possession had been in the Muskrellas' and Ransdells' possession.

At trial, the three complainants listed in the indictment, Maria, Bill, and Michael Anthony each testified. Although not listed as complainants, Michael Thomas, Patricia, and Patty also testified. Appellant objected to this testimony. In response to appellant's objection, the State asserted the testimony of Michael Thomas, Patricia, and Patty was necessary in its case-in-chief to prove the identity of appellant and to prove that appellant exhibited a gun during the commission of the robberies. Overruling appellant's objection, the trial court instructed the State to "focus on the questions only on those matters that are in contention, identity and whether there was a gun present and not only what -- any crime committed against those particular individuals personally."

The Court's charge to the jury during the guilt-innocence phase of trial included instructions on the law of parties, so that the jury could convict appellant for his conduct alone or for acting as a party to the offense. The Court's instruction to the jury on the law of parties stated:

All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which is criminally responsible, or both. A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one as being a party to an offense.

During the charge conference, appellant's counsel objected to the inclusion of the instruction on the law of parties in the charge, stating:

There [was] no evidence that [appellant] acted with the intent to promote or assist in the commission of the offense. He did nothing to solicit, encourage, direct, aid or attempt to aid anyone in the commission of this offense. . . [appellant] should be tried on his indictments alone, for his acts and not the acts of Mr. Thomas.

The court overruled this objection.Sufficiency of the Evidence

In his first two issues, appellant contends the evidence is legally and factually insufficient to prove that appellant is guilty of the offenses of aggravated robbery. Specifically, appellant contends the evidence is insufficient to show (1) appellant was a party to the offenses of aggravated robbery and (2) appellant or one of his co-actors exhibited a gun during the course of taking property from the complainants. A. The Law of Parties

A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Penal Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible for the conduct of another if he acts with intent to promote or assist the commission of the offense and he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. at § 7.02(a)(2). When a party is not the primary actor, the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985); Miller v. State, 83 S.W.3d 308, 313 (Tex. App.--Austin 2002, pet. ref'd). Evidence is sufficient to sustain a conviction under the law of parties if it shows the defendant was physically present at the commission of the offense and encouraged the commission of the offense either by words or by other agreement. Tarpley v. State, 565 S.W.2d 525, 529 (Tex. Crim. App. 1978); Miller, 83 S.W.3d at 313-14.

"Since an agreement between parties to act together in common design can seldom be proven by words, the State often must rely on the actions of the parties, shown by direct or circumstantial evidence, to establish an understanding or a common design to commit the offense." Miller, 83 S.W.3d at 314. The agreement, if any, must be made before or contemporaneous with the criminal event, but in determining whether one has participated in an offense, the court may examine the events occurring before, during and after the commission of the offense. Beier, 687 S.W.2d at 3-4; Miller, 83 S.W.3d at 314. Circumstantial evidence may suffice to show that one is a party to an offense. Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977); Miller, 83 S.W.3d at 314.

While mere presence at the scene is not enough to sustain a conviction, that fact may be considered in determining whether an appellant was a party to the offense. Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979) (op. on reh'g); Miller, 83 S.W.3d at 314. If the evidence, however, shows the mere presence of an accused at the scene of an offense, without more, then it is insufficient to sustain a conviction as a party to the offense. Valdez, 623 S.W.2d at 321; Scott v. State, 946 S.W.2d 166, 168 (Tex. App.--Austin 1997, pet. ref'd). B. The Elements of Aggravated Robbery

Appellant challenges the sufficiency of the evidence to sustain each of the convictions for aggravated robbery. A person commits aggravated robbery when he commits robbery and he causes serious bodily injury to another, or uses or exhibits a deadly weapon. See Tex. Penal Code Ann. § 29.03. A firearm is considered a deadly weapon. See id.§ 1.07(a)(17)(A) (Vernon Supp. 2008).

C. Legal Sufficiency Standard of Review

In his first issue in each of the appeals, appellant contends the evidence is not legally sufficient to sustain his convictions. In a legal sufficiency review, we consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found the accused guilty of all essential elements of the offense beyond a reasonable doubt. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Hoang v. State, 263 S.W.3d 18, 22 (Tex.App.--Houston [1st Dist.] 2006, pet. ref'd). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. See Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). "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." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). "On appeal, the same standard of review is used for both circumstantial and direct evidence cases." Id.

D. Factual Sufficiency Standard of Review

In his second issue in each of the appeals, appellant contends the evidence is factually insufficient to sustain each of the convictions for aggravated robbery. When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005); Hoang, 263 S.W.3d at 23. We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson, 204 S.W.3d at 417. Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellate courts should afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court that relies on the cold record. Id. The jury may choose to believe some testimony and disbelieve other testimony. Id. at 707.

E. The Evidence

1. Michael Anthony

Michael Anthony testified that the group of assailants were African-American or Hispanic males. Two assailants threatened to kill Michael Anthony and ordered him to get on the ground. Once Michael Anthony lay prostrate on the ground, he noticed that one assailant had on bright red shiny high-top shoes.

Prior to the robbery, Michael Anthony had been paid his salary in cash by his father. Out of that salary money, he had ten $100 bills in his wallet, along with identification and credit cards. All of this money was taken by an assailant. All the assailants he saw wore dark colored baggy clothing and big jackets. Michael Anthony could not positively say that appellant, as he appeared in the courtroom, was one of the robbers because the faces of the robbers he saw were covered with hoods and bandanas.

2. Maria

Maria testified that the group of assailants were Hispanic males. One assailant held what she believed was a gun to the side of her head. Although the other complainants testified that all the assailants were wearing hoodies or bandanas to conceal their faces, she was sure that this assailant did not. She saw his entire face and throughout the robbery she only looked at this one assailant because she was afraid of being shot. She stated this assailant had dark, beady, serious looking eyes and a round face. He had short hair that was slightly wavy and had a flat nose. She testified that appellant, as he appeared in the courtroom, resembled the assailant that held the gun to her face. The money in the purse taken from her had slightly under $200. The denominations of the money consisted of a $100 dollar bill, a $50 dollar bill, some $20 dollar bills, and a $10 dollar bill. Maria explained that she gave up the purse because she thought "they were going to spray us [with bullets]."

3. Bill

Bill testified that the group of assailants were either African-American or Hispanic, and they had dark skin. Of the two assailants that approached Bill, one had on a black bandana, and the other had on a red bandana. Bill was certain they were also wearing hoodies. The money taken from him consisted of six $100 dollar bills, smaller bills, and a $2 dollar bill that he kept as a lucky token because it was unique.

4. Michael Thomas

Michael Thomas' testimony was limited by the court to the identification of the gun. Michael Thomas testified that he "touched the gun" and "moved it away from [his] temple." Michael Thomas identified the gun as an "automatic pistol" based upon the appearance of the weapon and how it felt when he touched it.

5. Patty

Patty testified that the assailants that attacked her wore dark red hoodies and dark red jackets. Patty also testified about the firearm she saw. She stated she saw the firearm pointed at "[t]he temple of [Michael Thomas's] head." She specifically noted that the gun was "small, square . . . [and] pointed at Michael [Thomas]'s temple."

6. Patricia

Patricia testified that the assailant who approached her was likely Hispanic and had on a dark colored bandana. Because it was dusk, she could not tell the exact color of the bandana.

7. Deputy Delgado

Deputy Delgado testified that she found appellant and Thomas about an hour after the robbery and about one block from the scene of the robbery. Delgado personally searched Thomas but did not search appellant. Thomas, had over $1,400 dollars on him. Out of that amount, Thomas had 14 $100 dollar bills, two $20 dollar bills, two $5 dollar bills, and a $2 dollar bill.

8. Deputy Larry Gammon

Deputy Gammon testified he personally searched appellant. When Deputy Gammon found appellant, he was wearing a red shirt, dark colored shorts, and red high top tennis shoes. He testified that Thomas was wearing a white long sleeve shirt, black pants, and black tennis shoes. Deputy Gammon believed the dark clothing appellant and Thomas were wearing closely matched the description of the clothes worn by the assailants. Appellant had a wallet, but the money he carried was not in his wallet but in his front pocket. The amount of that money was $190 dollars. Out of that $190, there was one $50 dollar bill, four $20 dollar bills, four $10 dollar bills, and several smaller bills. Appellant also had a red bandana in his pocket.

9. Detective Brian Wall

Hours after the Muskrella and Ransdell robbery, Detective Brian Wall was able to locate a suspicious vehicle less than ten blocks from the scene of that robbery. Detective Wall began searching for a vehicle when he was notified that a white Impala had been used in another robbery reported the same night and in the same general area as the Muskrella and Ransdell robbery. Detective Wall found a white Impala that matched the description. The Impala belonged to Erica Lewis, the girlfriend of Brandon Thomas, who was the man with appellant shortly after the Muskrella and Ransdell robbery. Detective Wall gained permission to search the Impala, and found a dew rag on the front seat. Large dark red hoodie jackets and wallets were found inside the car's cabin. Based upon the identification cards found in the wallets, Detective Wall discovered the wallets belonged to Bill and Michael Anthony.

F. Sufficiency of the Evidence Analysis

Appellant makes the same arguments concerning his challenge to legal and factual sufficiency of the evidence. Appellant challenges the evidence identifying him as one of the assailants. Appellant points to Maria's testimony on cross-examination that she could not "say one hundred percent for sure" that appellant was one of the men that approached the Muskrellas and the Ransdells and demanded money. Appellant points to similar testimony by Bill and Michael Anthony because neither man could say that appellant was one of the men that approached the Muskrellas and the Ransdells. Further, appellant points to Michael Anthony's testimony that the red shoe appellant wore when he was apprehended was not the same red shoe the assailant wore when Michael Anthony was robbed.

The evidence shows that all the assailants were either Hispanic or African-American males and that most, if not all, the assailants wore either red or black bandanas and wore hoodie-type jackets. When the deputies stopped appellant a block from the scene of the incident with the Muskrellas and Randells within one hour of the incident, he was wearing clothing that matched the description of the clothing worn by the assailants. He also had a red bandana in his pocket. One complainant, Maria, believed appellant closely resembled the assailant that held a gun to her head. Furthermore, when appellant was apprehended, the $1400 in possession of appellant and his companion, Thomas, closely matched both the amount and the denomination of the money stolen from the Muskrellas and Ransdells; one of the matching denominations was a $2 dollar bill, an uncommon denomination. Shortly after the robbery, the wallets of Bill and Michael Anthony were also later found in a car parked within 10 blocks of the robbery. The car was owned by Thomas' girlfriend.

Appellant also challenges the evidence that the assailants used a firearm. Appellant points to Maria's testimony at trial that she was sure a gun was held to her head, but she never actually saw a gun. Appellant points to Bill's testimony at trial that he assumed the man that approached him was holding a gun in his pocket, but he never actually saw a gun. Other evidence in the record, however, established that a firearm was used. Patty testified that she was sure she saw a gun pointed at "[t]he temple of [Michael Thomas's] head" and that she was sure it was a gun. She specifically noted that the gun was "small, square . . . [and] pointed at Michael [Thomas]'s temple." Michael Thomas testified that he "touched the gun" and "moved it away from [his] temple."

Viewing the evidence in a light most favorable to the verdict, we conclude the jury could have reasonably found that appellant was physically present at the commission of the aggravated robbery of Maria, Bill, and Michael Anthony, acted with the intent to promote or assist the aggravated robberies, and encouraged and aided the commission of the aggravated robbery by participating with the group of assailants who worked in combination to commit aggravated robberies. See Tex. Penal Code Ann. § 29.03; Tarpley, 565 S.W.2d at 529; Miller, 83 S.W.3d at 313-14. We hold the evidence is legally sufficient to sustain the convictions for aggravated robbery. We overrule appellant's first issue for each of the three appeals.

We conclude that, viewed in a neutral light, the evidence tending to prove that appellant is guilty of the aggravated robberies of Maria, Bill, and Michael Anthony, is not so weak as to render the jury's verdict clearly wrong or manifestly unjust. See Johnson, 23 S.W.3d at 11. We also conclude that, viewed in a neutral light, the verdict is not against the great weight and preponderance of the evidence that appellant committed aggravated robberies of Maria, Bill, and Michael Anthony. See id. We hold the evidence is factually sufficient to sustain the convictions for aggravated robbery. We overrule appellant's second issue for each of the three appeals.

Admission of Extraneous Evidence

In his fourth issue, appellant contends the trial court erred by admitting extraneous evidence. Appellant contends the trial court erred by admitting the testimony of Michael Thomas, Patricia, and Patty over his objections under Texas Rules of Evidence 403 and 404(b). See Tex. R. Evid. 403 (Vernon 2003) ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."); Tex. R. Evid. 404(b) ("Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .")

A. Standard of Review

We review a trial court's admission of extraneous offense evidence for an abuse of discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on reh'g); Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd). A trial court does not abuse its discretion as long as its decision to admit evidence is within the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim. App. 1991) (op. on reh'g). Further, a trial court's decision regarding admissibility of evidence will be sustained if correct on any theory of law applicable to the case, even when the court's underlying reason for the decision is wrong. Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990) (citing Spann v. State, 448 S.W.2d 128 (Tex. Crim. App. 1969)).

B. Rule 404(b)

Rule 404(b) states that evidence of extraneous offenses is not admissible at the guilt-innocence phase of a trial to prove that a defendant committed the charged offense in conformity with a bad character. Tex. R. Evid. 404(b); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992). Extraneous offense evidence may be admissible, however, when it has relevance beyond character-conformity, for example, to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005).

Furthermore, extraneous offense evidence may be admissible as same-transaction contextual evidence, where "several crimes are intermixed, or blended with another, or connected so that they form an indivisible criminal transaction." Prible, 175 S.W.3d at 731-32 (citing Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)). "The jury is entitled to know all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum." Id. at 733 (citing Moreno v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1986)). To be admissible under Rule 404(b), same transaction contextual evidence must be necessary to the jury's understanding of the offense. See Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000). Such necessity can exist because (1) several offenses are so intermixed or connected as to form a single, indivisible criminal transaction, such that in narrating the one, it is impracticable to avoid describing the other; or (2) the same transaction contextual evidence is admissible "not for the purpose of showing character conformity, but to illuminate the nature of the crime alleged." Comacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).

Appellant and his co-actors effectuated the aggravated robbery of the Ransdells and Muskrellas within the same, concurrent, series of events. While the present cases before us concern the aggravated robberies of Michael Anthony, Maria, and Bill, these offenses occurred in a single indivisible criminal transaction, and in the presence of Michael Thomas, Patricia, and Patty. See Prible, 175 S.W.3d at 731-32. The testimony of Michael Thomas, Patricia, and Patty was not cumulative, but rather it was needed to develop the full story regarding the offenses. Each witness had something unique to offer.

At trial, the defense brought into issue whether appellant and his companions actually used a gun. The complainants, Michael Anthony, Maria, and Bill, testified that they thought a gun was used, but were not able to fully testify that they saw the actual gun. Patty and Michael Thomas, on the other hand, could provide that testimony. Patty testified that she was sure she saw a gun pointed at "[t]he temple of [Michael Thomas's] head." She specifically noted that the gun was "small, square, dark . . . [and] pointed at Michael [Thomas]'s temple." Michael Thomas provided even more specific testimony about the gun. He stated that he "touched the gun" and "moved it away from [his] temple." After noting his extensive experience with firearms, he testified that he believed it was an "automatic weapon" and likely a "Glock."

At trial, appellant also brought identity into issue. Patty and Patricia were able to specifically testify about appellant's identity. Patty testified that appellant and his companions were wearing "red hoodies and bandanas." Patty's ability to testify that the clothing was red was important because the robbery occurred at or after dusk and as a result there was poor lighting. The poor lighting made it difficult for most of the complainants to specify the exact color of the "dark colored" clothing. Patty was able to provide that testimony by testifying that the color of the clothing was red. Patty's identification of the assailants' clothing and the red bandana was important to the State's case-in-chief because it clarified the testimony regarding the assailants' clothing, and because a red bandana was one of the items in appellant's possession at the time of the arrest.

The testimony of Michael Thomas, Patricia, and Patty was needed to address issues raised at trial by appellant and was limited to providing same transaction contextual evidence necessary to the jury's understanding of the offense. See Wyatt, 23 S.W.3d at 25. The trial court did not abuse its discretion under Rule 404(b) by allowing the State to introduce testimony of appellant's participation in the aggravated robbery and the presence of a weapon during the commission of the crime. Id.

C. Rule 403

Evidence may be excluded under rule 403 if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003) (citing Montgomery, 810 S.W.2d at 387). An appellant's trial objection must comport with his objection on appeal, or error is waived. Tex. R. App. P. 33.1(a)(1)(A); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). At trial, appellant objected to the testimony of Michael Thomas, Patricia, and Patty only on the grounds that such testimony would violate rule 404(b); here, he contends that the court erred because the testimony was more prejudicial than probative and therefore violated rule 403. Because the ground in appellant's trial motion does not comport with his assertions on appeal, any error is waived. We overrule the fourth issue in each of the three appeals.

Jury Instruction on Law of Parties

In his third issue, appellant contends the trial court erred by including a jury instruction on the law of parties. Appellant does not challenge the phrasing of the instruction, only its inclusion. Having found the evidence legally sufficient to show appellant acted as a party in the aggravated robberies of Michael Anthony, Maria, and Bill, we conclude the trial court properly included a jury instruction on the law of parties. See, e.g., Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001) (jury instruction can be given if "anything more than a scintilla of evidence" relating to issue is present). We overrule appellant's third issue for each of the three appeals.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Keyes, Alcala, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).