Fifth Court of Appeals APPELLANT S BRIEF

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1 Fifth Court of Appeals ACCEPTED CR FIFTH COURT OF APPEALS DALLAS, TEXAS 12/31/2013 5:20:09 AM LISA MATZ CLERK NO CR TERRISH JERMAINE GARMON, Appellant, v. STATE OF TEXAS, Appellee APPELLANT S BRIEF Appealed from Criminal District Court No. 3 Dallas County, Texas Trial Cause Number F Hon. Gracie Lewis Presiding Submitted by: Michael Mowla 603 N. Cedar Ridge Suite 100 Duncanville, TX Phone: Fax: Texas Bar No Attorney for Appellant ORAL ARGUMENT NOT REQUESTED

2 Terrish Jermaine Garmon, Appellant Identities of Parties and Counsel Michael Mowla, Attorney for Appellant on Appeal, 603 N. Cedar Ridge Suite 100, Duncanville, Texas 75116, phone (972) , fax (972) , J. Paul Rosemergy, Attorney for Appellant at Trial, 320 Decker Drive, Irving, Texas 75062, phone (214) State of Texas, Appellee. Craig Watkins, Dallas County District Attorney, Attorney for State of Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas , phone (214) , fax (214) Michael Casillas, Dallas County Assistant District Attorney, Attorney for State of Texas on Appeal, 133 N. Riverfront Blvd., LB 19, Dallas, Texas , phone (214) , fax (214) Lisa Smith, Dallas County Assistant District Attorney, Attorney for State of Texas on Appeal, 133 N. Riverfront Blvd., LB 19, Dallas, Texas , phone (214) , fax (214) Marcia T. Taylor, Dallas County Assistant District Attorney, Attorney for Appellee at Trial, 133 N. Riverfront Blvd., LB 19, Dallas, Texas , phone (214) , fax (214) Brandie Wade, Dallas County Assistant District Attorney, Attorney for Appellee at Trial, 133 N. Riverfront Blvd., LB 19, Dallas, Texas , phone (214) , fax (214) Hon. Gracie Lewis, Presiding Judge of Criminal District Court No. 3, 133 N. Riverfront Blvd., Dallas, Texas , phone (214) Page 2 of 79

3 Table of Contents Identity of Parties and Counsel... 2 Table of Contents... 3 Index of Authorities... 5 Statement of the Case and Jurisdiction Statement Regarding Oral Argument Issues Presented Facts Summary of the Arguments Arguments Issue One: The trial court erred and abused its discretion by allowing the State to present evidence of the alleged extraneous offenses and evidence of the 2004 conviction for evading arrest because: (1) the State failed to prove beyond a reasonable doubt that Appellant actually committed the alleged extraneous offenses; (2) evidence of the alleged extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, and flight; and (3) the probative value of admitting the alleged extraneous offenses and evidence of the 2004 conviction for evading arrest was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and clearly misled the jury Page 3 of 79

4 Issue Two: The evidence is legally insufficient to prove that Appellant committed Burglary of a Habitation because the State failed to prove that without the effective consent of the Complaining Witness, Appellant: (1) entered the habitation of the Complaining Witness with intent to commit a felony, theft, or an assault; or (2) remained concealed, with intent to commit a felony, theft, or an assault, in the habitation of the Complaining Witness; or (3) entered the habitation of the Complaining Witness and committed or attempted to commit a felony, theft, or an assault Conclusion and Prayer Certificate of Service Certificate of Compliance with Rule Page 4 of 79

5 Index of Authorities Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011) Adelman v. State, 828 S.W.2d 418 (Tex. Crim. App. 1992) Albert v. State, 579 S.W.2d 925 (Tex. Crim. App. 1979)... 41, 42, 72 Albrecht vs. State, 486 S.W.2d 97 (Tex. Crim. App. 1972) Allen v. State, 651 S.W.2d 267 (Tex. Crim. App. 1983) Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) Arnott v. State, 498 S.W.2d 166 (Tex. Crim. App. 1973) Bachhofer v. State, 633 S.W.2d 869 (Tex. Crim. App. 1982)... 58, 63 Blackmon v. State, 644 S.W.2d 12 (Tex. App. Dallas, 1982) Boudreaux v. State, 757 S.W.2d 139 (Tex. App. Houston [1st Dist.] 1988, pet. ref.) Bowen v. State, 460 S.W.2d 421 (Tex. Crim. App. 1970) Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)... 40, 41, 70, 72 Burgett v. State, 646 S.W.2d 615 (Tex. App. Fort Worth 1983, pet. ref.) Cano v. State, CR, 2012 Tex. App. LEXIS 10109, 2012 WL (Tex. App. Corpus Christi, Dec. 6, 2012) (not designated for publication)... 45, 73 Cantrell v. State, 731 S.W.2d 84 (Tex. Crim. App. 1987)... 35, 59 Carlsen v. State, 654 S.W.2d 444 (Tex. Crim. App. 1983) (opinion on rehearing) Castillo v. State, 739 S.W.2d 280 (Tex. Crim. App. 1987) Page 5 of 79

6 Celeste v. State, 805 S.W.2d 579 (Tex. App. Tyler 1991, no pet.) Clark v. State, 543 S.W.2d 125 (Tex. Crim. App. 1976)... 74, 75 Clark v. State, 693 S.W.2d 35 (Tex. App. Houston [1st Dist.] 1985, pet. ref.) Clark v. State, 726 S.W.2d 120 (Tex. Crim. App. 1986) Cobb v. State, 503 S.W.2d 249 (Tex. Crim. App. 1973) Collazo v. State, 623 S.W.2d 647 (Tex. Crim. App. 1981) Connor v. State, 773 S.W.2d 13 (Tex. Crim. App. 1989) Corley v. State, 987 S.W.2d 615 (Tex. App. Austin 1999)... 60, 62 Crane v. State, 786 S.W.2d 338 (Tex. Crim. App. 1990) Crossman v. State, 797 S.W.2d 321 (Tex. App. Corpus Christi 1990, no pet.) Daggett v. State, 187 S.W.3d 444 (Tex. Crim. App. 2005) DeVaughn v. State, 749 S.W.2d 62 (Tex. Crim. App. 1988) Dubose v. State, 915 S.W.2d 493 (Tex. Crim. App. 1996) Epps v. State, 811 S.W.2d 237 (Tex. App. Dallas 1991, no pet.) Ernster v. State, 308 S.W.2d 33 (Tex. Crim. App. 1957) Fentis v. State, 528 S.W.2d 590 (Tex. Crim. App. 1975) Ferrell v. State, 429 S.W.2d 901 (Tex. Crim. App. 1968) Ford v. State, 484 S.W.2d 727 (Tex. Crim. App. 1972)... 53, 54, 59 Foster v. State, 635 S.W.2d 710 (Tex. Crim. App. 1982) Page 6 of 79

7 Garcia v. State, 571 S.W.2d 896 (Tex. Crim. App. 1978) Garza v. State, 715 S.W.2d 642 (Tex. Crim. App. 1986) Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011)... 42, 72 George v. State, 890 S.W.2d 73 (Tex. Crim. App. 1994) Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987) Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) Gomez v. State, CR, 2013 Tex. App. LEXIS 7831, 2013 WL (Tex. App. Corpus Christi June 27, 2013) (not designated for publication)... 44, 73 Govan v. State, 671 S.W.2d 660 (Tex. App. Houston [1st Dist.] 1984)... 38, 39 Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996)... 32, 64 Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001) Hammonds v. State, 500 S.W.2d 831 (Tex. Crim. App. 1973) Hardage v. State, 552 S.W.2d 837 (Tex. Crim. App. 1977) Hardesty v. State, 656 S.W.2d 73 (Tex. Crim. App. 1983)... 46, 77 Harrell v. State, 884 S.W.2d 154 (Tex. Crim. App. 1994) Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1990)... 38, 68 Hernandez v. State, 897 S.W.2d 488 (Tex. App. Tyler 1995, no pet.) Howland v. State, 966 S.W.2d 98 (Tex. App. Houston [1st Dist.] 1998), affirmed, 990 S.W.2d 274 (Tex. Crim. App. 1999) Page 7 of 79

8 Hoyos v. State, 982 S.W.2d 419 (Tex. Crim. App. 1998) Huddleston v. United States, 485 U.S. 681 (1988) Hudson v. United States, 522 U.S. 93 (1997) Jackson v. Virginia, 443 U.S. 307 (1979)... 40, 70, 71, 72 James v. State, 554 S.W.2d 680 (Tex. Crim. App. 1977)... 8 James v. State, 102 S.W.3d 162 (Tex. App. Fort Worth 2003, pet. ref.) Jones v. State, 751 S.W.2d 682 (Tex. App. San Antonio 1988, no pet.) Johnson v. State, 932 S.W.2d 296 (Tex. App. Austin 1996, pet. ref.)... 48, 49 Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) Johnston v. State, 145 S.W.3d 215 (Tex. Crim. App. 2004) Keller v. State, 818 S.W.2d 425 (Tex. App. Houston [1st Dist.] 1991, pet. ref.) Kirvin v. State, 575 S.W.2d 301 (Tex. Crim. App. 1978) Lang v. State, 698 S.W.2d 735 (Tex. App. El Paso 1985, no pet.) Lankford v. State, 248 S.W. 389 (Tex. Crim. App. 1923) Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)... 40, 70, 72 LaPoint v. State, 750 S.W.2d 180 (Tex. Crim. App. 1986)... 41, 72 Lewis v. State, 674 S.W.2d 423 (Tex. App. Dallas 1984, pet. ref.) Little v. State, 567 S.W.2d 502 (Tex. Crim. App. 1978) Lott v. State, 695 S.W.2d 237 (Tex. App. Corpus Christi 1985, pet. ref.) Page 8 of 79

9 Lucio v. State, 740 S.W.2d 115 (Tex. App. San Antonio 1987, no pet.) Maddox v. State, 682 S.W.2d 563 (Tex. Crim. App. 1985) Malone v. State, 849 S.W.2d 414 (Tex. App. Beaumont 1993, no pet.) Mares v. State, 758 S.W.2d 932 (Tex. App. El Paso 1988, pet. ref.) Martin v. State, 722 S.W.2d 172 (Tex. App. Beaumont 1986, pet. ref.) Mason v. State, 99 S.W.3d 652 (Tex. App. Eastland 2003, pet. ref.) McDonald v. State, 513 S.W.2d 44 (Tex. Crim. App. 1974) McFarland v. State, 930 S.W.2d 99 (Tex. Crim. App. 1996) McGinnies v. State, 576 S.W.2d 384 (Tex. Crim. App. 1979) McKay v. State, 707 S.W.2d 23 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871 (1986) Messenger v. State, 638 S.W.2d 883 (Tex. Crim. App. 1982)... 53, 54, 58 Middleton v. State, CR, 2013 Tex. App. LEXIS 6203, 2013 WL (Tex. App. Houston [14th Dist] May 21, 2013) (memorandum opinion)... 45, 73 Miller v. State, 2 S.W.3d 475 (Tex. App. Tyler 1999, no pet.) Mills v. State, 847 S.W.2d 453 (Tex. App. Eastland 1993, pet. ref.) Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (opinion on rehearing)... passim Morgan v. State, 692 S.W.2d 877 (Tex. Crim. App. 1985) Moreno v. State, 702 S.W.2d 636 (Tex. Crim. App. 1986)... 41, 72 Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) Page 9 of 79

10 Nelson v. State, 599 S.W.2d 809 (Tex. Crim. App. 1980) Old Chief v. United States, 519 U.S. 172 (1997) Ortiz v. State, 577 S.W.2d 246 (Tex. Crim. App. 1979) Owens v. State, 576 S.W.2d 859 (Tex. Crim. App. 1979) Page v. State, 213 S.W.3d 332 (Tex. Crim. App. 2006) Parmer v. State, 38 S.W.3d 661 (Tex. App. Austin 2000, pet. ref.) Phillips v. State, 538 S.W.2d 116 (Tex. Crim. App. 1976) Phillips v. State, 659 S.W.2d 415 (Tex. Crim. App. 1983) Pickett v. State, 542, S.W.2d 868 (Tex. Crim. App. 1976) Plante v. State, 692 S.W.2d 487 (Tex. Crim. App. 1985) Pondexter v. State, 942 S.W.2d 577 (Tex. Crim. App. 1996) Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001) Prescott v. State, 744 S.W.2d 128 (Tex. Crim. App. 1988)... 56, 57 Rangel v. State, 250 S.W.3d 96 (Tex. Crim. App. 2008) Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1998) (opinion on rehearing)... 36, 64 Redd v. State, 522 S.W.2d 890 (Tex. Crim. App. 1975) Reyes v. State, 69 S.W.3d 725 (Tex. App. Corpus Christi 2002) Rice v. State, 753 S.W.2d 726 (Tex. App. Beaumont 1988, pet. ref.) Richardson v. State, 973 S.W.2d 384 (Tex. App. Dallas 1998, no pet.)... 43, 72 Page 10 of 79

11 Roane v. State, 959 S.W.2d 387 (Tex. App. Houston [14th] Dist. 1998, pet. ref.)... 42, 72 Robbins v. State, 88 S.W.3d 256 (Tex. Crim. App. 2002)... 33, 34 Robinson v. State, 570 S.W.2d 906 (Tex. Crim. App. 1978) Robinson v. State, 701 S.W.2d 895 (Tex. Crim. App. 1985)... 59, 60 Robinson v. State, 728 S.W.2d 858 (Tex. App. Austin 1987, no pet.) Robledo v. State, 480 S.W.2d 401 (Tex. Crim. App. 1972)... 59, 60 Robles v. State, 664 S.W.2d 91 (Tex. Crim. App. 1984) Rodriguez v. State, 549 S.W.2d 747 (Tex. Crim. App. 1977) Rogers v. State, 991 S.W.2d 263 (Tex. Crim. App. 1999) Rollerson v. State, 227 S.W.3d 718 (Tex. Crim. App. 2007)... 46, 77 Simmons v. State, 457 S.W.2d 570 (Tex. Crim. App. 1970) Siqueiros v. State, 685 S.W.2d 68 (Tex. Crim. App. 1985) Soffar v. State, 742 S.W.2d 371 (Tex. Crim. App. 1987) State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005)... 66, 67 Stearn v. State, 571 S.W.2d 177 (Tex. Crim. App. 1978)... 73, 74 Stringer v. State, 845 S.W.2d 400 (Tex. App. Houston [1st Dist.] 1992, pet. ref.) Tate v. State, 981 S.W.2d 189 (Tex. Crim. App. 1998) Templin v. State, 711 S.W.2d 30 (Tex. Crim. App. 1986)... 32, 33, 58 Thompson v. State, 563 S.W.2d 247 (Tex. Crim. App. 1978) Page 11 of 79

12 Thompson v. State, 615 S.W.2d 760 (Tex. Crim. App. 1981) Tippins v. State, 530 S.W.2d 110 (Tex. Crim. App. 1975) Torres v. State, 785 S.W.2d 824 (Tex. Crim. App. 1989) Turner v. State, 754 S.W.2d 668 (Tex. Crim. App. 1988) United States v. Beechum, 582 F.2d 898 (5th Cir. 1978)... 35, 50 Vaughn v. State, 118 S.W.2d 312 (1938) Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992) Voelkel v. State, 501 S.W.2d 313 (Tex. Crim. App. 1973)... 59, 60 Walker v. State, 588 S.W.2d 920 (Tex. Crim. App. 1979) Warren v. State, No CR, 2013 Tex. App. LEXIS 8676, 2013 WL (Tex. App. Dallas, July 12, 2013) (not designated for publication)... 44, 72 Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000)... 31, 32 Whittington v. State, 580 S.W.2d 845 (Tex. Crim. App. 1979)... 34, 56 Williams v. State, 506 S.W.2d 868 (Tex. Crim. App. 1974) Yates v. State, 941 S.W.2d 357 (Tex. App. Waco 1997, pet. ref.) Ybarra v. State, 401 S.W.2d 608 (Tex. Crim. App. 1966) Yohey v. State, 801 S.W.2d 232 (Tex. App. San Antonio 1990, pet. ref.) Young v. State, 675 S.W.2d 770 (Tex. Crim. App. 1984) Constitutions U.S. Const. Amend. V Page 12 of 79

13 U.S. Const. Amend. XIV Statutes and Rules Tex. Code Crim. Proc. Art Tex. Pen. Code passim Tex. Pen. Code Tex. Rule Evid Tex. Rule Evid , 63 Tex. Rule Evid passim Tex. Rule Evid passim Tex. Rule App. Proc Tex. Rule App. Proc Tex. Rule App. Proc Tex. Rule App. Proc Tex. Rule App. Proc Tex. Rule App. Proc Tex. Rule App. Proc Other Sources J. McLaughlin, Weinstein s Federal Evidence (2006 rev.) K. Broun, et al., McCormick on Evidence 185 at 737 (6th ed. 2006) S. Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence, (3rd ed. 2002) Page 13 of 79

14 To the Honorable Justices of the Court of Appeals: Terrish Jermaine Garmon, Appellant, submits this Brief in support of his appeal of his judgment of conviction and sentence: Statement of the Case and Jurisdiction This case is an appeal of a judgment of conviction and sentence under Cause Number F from Criminal District Court Number 3 of Dallas County, Texas. (CR, 78-80). 1 Appellant was indicted for Burglary of a Habitation. (RR2, 7-8; CR, 14). The State alleged that on or about May 26, 2012, in Dallas County, Texas, with the intent to commit a theft or attempt to commit a theft, Appellant intentionally and knowingly entered the habitation of Jude Garcia without the effective consent of Jude Garcia. (RR2, 7-8; CR, 14). The indictment further alleged that prior to the commission of this offense, Appellant was finally convicted of two other felony offenses: that on October 7, 2005, under cause number F , in Criminal District Court Number 4 of Dallas County, Texas, Appellant was finally convicted of the felony offense of Evading Arrest by a Motor Vehicle; and also on February 13, 2003, under cause number F , in the 204th Judicial District Court of Dallas County, Texas, Appellant was finally convicted of the felony offense of Burglary of a Habitation. (RR2, 7-8; CR, 14). 1 The Clerk s Record, which is comprised of a single volume, is referenced throughout this Brief as CR followed by the page number of the Clerk s Record. The Reporter s Record, which is comprised of seven volumes, is referenced throughout this Brief as RR followed by the volume number and page number. Page 14 of 79

15 Appellant pleaded not guilty. (RR2, 8). After a trial on the merits, on April 25, 2013, Appellant was convicted by a jury of Burglary of a Habitation. (RR5, 5; CR, 78-80); See Tex. Pen. Code On the same day, Appellant was sentenced to 15 years in prison to the Texas Department of Criminal Justice, Institutional Division, and was fined $10, (RR5, 63; CR, 78-80) On April 25, 2013, Appellant filed a timely notice of appeal, thus perfecting this appeal. (CR, 84); See Tex. Rule App. Proc. 26.2(a). The trial court signed a Certification of Appellant s Right of Appeal, certifying that this is not a plea bargain case, and that Appellant has the right to an appeal. (CR, 83); See Tex. Rule App. Proc. 25.2(a)(2). As a result, this Court has jurisdiction over this appeal. Page 15 of 79

16 Statement Regarding Oral Argument Pursuant to Texas Rules of Appellate Procedure 39.1 and 39.2, Appellant does not request oral argument before this Court of Appeals. See Tex. Rule App. Proc & Although this is a meritorious appeal of a criminal case, Appellant believes that the facts and legal arguments are adequately presented in this Brief and in the record on appeal. Appellant also believes that the decisional process of the Court of Appeals will not be significantly aided by oral argument. As a result, Appellant does not request oral argument and asks that the issues presented in this Brief be considered by this Court of Appeals by submission only. Page 16 of 79

17 Issues Presented Issue One: The trial court erred and abused its discretion by allowing the State to present evidence of the alleged extraneous offenses and evidence of the 2004 conviction for evading arrest because: (1) the State failed to prove beyond a reasonable doubt that Appellant actually committed the alleged extraneous offenses; (2) evidence of the alleged extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, and flight; and (3) the probative value of admitting the alleged extraneous offenses and evidence of the 2004 conviction for evading arrest was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and clearly misled the jury. Issue Two: The evidence is legally insufficient to prove that Appellant committed Burglary of a Habitation because the State failed to prove that without the effective consent of the Complaining Witness, Appellant: (1) entered the habitation of the Complaining Witness with intent to commit a felony, theft, or an assault; or (2) remained concealed, with intent to commit a felony, theft, or an assault, in the habitation of the Complaining Witness; or (3) entered the habitation of the Complaining Witness and committed or attempted to commit a felony, theft, or an assault. Page 17 of 79

18 Facts Pretrial hearing on State s motion for certain alleged extraneous offenses to be introduced during the innocence/guilt portion of the trial Prior to voir dire commencing, the trial court heard the State s motion to introduce evidence of extraneous offenses under the theories of the doctrine of chances and modus operandi. (RR2, 9). The State argued that under the theory of the doctrine of chances, an extraneous offense is admissible if: (1) it is relevant; and (2) the probative value is not substantially outweighed by prejudice. (RR2, 9). The State alleged that in the case before this Court, the complaining witness ( CW ) posted a motorcycle for sale on Craigslist. (RR2, 9-10). Appellant allegedly called the CW on May 26, 2012 and inquired about purchasing the motorcycle. (RR2, 10, 11). Appellant allegedly was the only person that the CW gave his address to. (RR2, 10). Later that same evening, holes were cut in the garage door of the CW s home, the emergency latch was pulled, and the motorcycle was the only item taken from the CW s garage. (RR2, 10). Appellant allegedly never called back to check on purchasing the motorcycle. (RR2, 10). The State then presented four extraneous offenses that it planned to present during the innocence/guilt phase of the trial. (RR2, 10). In the first offense, which allegedly occurred on or about March 18, 2012 in Coppell, Texas ( Coppell alleged extraneous act ), the alleged victim placed his motorcycle for sale on Page 18 of 79

19 Craigslist. (RR2, 10, 11). A person who identified himself as Marcus or Demarcus with a number allegedly connected to Appellant called the alleged victim and set up an appointment to look at the motorcycle. (RR2, 10). The alleged victim claimed that this Marcus or Demarcus was the only person to whom he gave his phone number to. (RR2, 10). The caller failed to appear to look at the motorcycle. (RR2, 10). That evening, someone attempted to steal the motorcycle from the home by cutting holes into the garage but was thwarted due to a dog barking in the home. (RR2, 10-11). The second extraneous act the State planned to present allegedly occurred in Fort Worth on or about April 5, 2012 ( Fort Worth alleged extraneous act ). (RR2, 11). In this act, the alleged victim placed his motorcycle for sale on Craigslist. (RR2, 11). A person named Terry called using the same phone number identified with Appellant. (RR2, 11). Holes were cut in the garage door of the home and the only item stolen was the motorcycle. (RR2, 11-12). Terry never showed up to see the motorcycle. (RR2, 12). The third extraneous act the State planned to present allegedly occurred in Grand Prairie on or about April 12, 2012 ( Grand Prairie alleged extraneous act ). (RR2, 12). One motorcycle was listed on Craigslist. (RR2, 12). An exchange of text messages allegedly occurred between the alleged victim and a phone number linked to Appellant. (RR2, 12). The alleged victim gave this person the address to Page 19 of 79

20 his home, and two motorcycles were stolen the same night from the garage. (RR2, 12). No holes were cut on the garage door, and the manner of entry into the garage is unknown. (RR2, 12). The fourth extraneous act the State planned to present allegedly occurred in Garland on or about May 10, 2012 ( Garland extraneous act ). (RR2, 12-13). A person named Terry allegedly called the alleged victim from the same number allegedly linked to Appellant. (RR2, 12). The garage door had glass contained in it, which was broken. (RR2, 12). Here, Terry again did not call back to come look at the motorcycle. (RR2, 13). The State argued that cutting holes into a garage door is a very unique way of entry into a garage. (RR2, 13). Appellant objected to the State s introduction of these four extraneous offenses, arguing that besides the fact that all are unadjudicated extraneous offenses, the only link is a phone call from a certain phone number linked to Appellant. (RR2, 14). There is no evidence that Appellant was ever present inside the homes. (RR2, 14). Further, Appellant argued, a search warrant was issued on Appellant s home, and no property was found. (RR2, 14). None of the stolen property was recovered. (RR2, 14). Arguing that the evidence is more prejudicial than probative, Appellant asserted that although the State wants to use the evidence of the extraneous offenses to show the identity of who made the call, there is no Page 20 of 79

21 evidence that Appellant committed any of the burglaries, and the only evidence in fact is that Appellant called asking about the motorcycles and then did not show up. (RR2, 14-15). Appellant also requested an order on a motion in limine, asking that none of the extraneous offenses be mentioned by the State or its witnesses until a hearing is conducted outside of the presence of the jury to determine whether a jury could find beyond a reasonable doubt that Appellant committed any of the extraneous offenses. (RR2, 15). The trial court found that the extraneous offenses are relevant and that their probative value outweighs their prejudicial effect. (RR2, 17). The trial court granted Appellant s motion in limine, ordering the State or its witnesses to not refer to the extraneous offenses during its opening statement so that a hearing could be had outside of the presence of the jury to determine whether they meet the requirements of proving identity, modus operandi, signature of Appellant, and possibly the preparation of Appellant. (RR2, 17-18). Evidentiary hearing to determine whether certain alleged extraneous offenses may be introduced during the innocence/guilt portion of the trial After voir dire and prior to commencement of the innocence/guilt portion of the trial, the trial court conducted an evidentiary hearing to determine whether certain alleged extraneous offenses may be introduced during the innocence/guilt portion of the trial. (RR4, 3). Rocky Bailey, an auto theft investigator with the Irving Police Department, testified that the CW in this case had received one phone Page 21 of 79

22 call regarding a motorcycle the CW advertised for sale on Craigslist. (RR4, 3-5). After the CW gave the address to the person who called, that night somebody cut a hole into the garage door and stole the motorcycle from the CW s garage. (RR4, 5-6). Bailey also learned from other law enforcement agencies that the motorcycle thefts from Coppell, Fort Worth, and Grand Prairie occurred in the same manner as the one in Irving. (RR4, 7). No fingerprints were found at the home in the Coppell and Forth Worth cases. (RR4, 10, 12). None of the motorcycles were recovered. (RR4, 10). After a search was conducted at Appellant s home pursuant to a search warrant, no stolen property was recovered from the home. (RR4, 11). The Grand Prairie alleged victim s phone number was found in Appellant s home. (RR4, 13). Bailey did not know whether any fingerprints were found in the Fort Worth case. (RR4, 11). Steven Hayes with the Coppell Police Department testified that after the alleged victim in Coppell advertised his motorcycle on Craigslist, someone who was using Appellant s phone number called and said he wanted to see the motorcycle. (RR4, 19-21). The alleged victim was then called back by the same person and was told that he was not going to go see the motorcycle. (RR4, 20). That night, the alleged victim s dogs were barking, causing him to go into the yard, where he saw nothing. (RR4, 20). The next day, the alleged victim discovered a Page 22 of 79

23 hole cut in the garage door, the garage door rolled up, but nothing was taken from the home or garage. (RR4, 20). No fingerprints or other evidence connecting Appellant was found at the home. (RR4, 27). Hayes also testified that in Garland and Grand Prairie, a person using Appellant s phone number called in response to Craigslist advertisements offering motorcycles for sale, a person called, nobody appeared to look at the motorcycles, holes were cut in the garage doors, and the motorcycles from each home were stolen. (RR4, 22-23, 27). In addition, Hayes testified that in 2004 in Richardson, Texas, a garage door was cut open, a motorcycle was stolen, and Appellant was found on the motorcycle in Balch Springs, Texas, and arrested for the offense. (RR4, 25). This motorcycle belonged to Dustin Mantell, who confirmed that a hole had been cut into his garage door, and his motorcycle had been stolen, later to be found in Balch Springs. (RR4, 32-33). In addition, he confirmed that no prints belonging to Appellant were found. (RR4, 36-37). Appellant again objected to the admission of the extraneous offenses under Texas Rules of Evidence 403 and 404(b), arguing that there was no evidence that Appellant ever went to any of the homes. (RR4, 39). And in the 2004 case, Appellant pointed out that he was convicted of evading arrest with a motor vehicle (the motorcycle) and not with stealing the motorcycle or burglarizing it from Page 23 of 79

24 Mantell s home. (RR4, 39-40). Appellant also argued that the 2004 case is too remote to be admissible. (RR4, 42). The trial court overruled Appellant s objections, allowing evidence of the extraneous offenses. (RR4, 42). The trial court also allowed evidence of the evading arrest from (RR4, 42). Although the trial court agreed that the 2004 evading arrest case is remote, since identity, modus operandi, and signature are at issue, the 2004 evading arrest case goes to the present offense. (RR4, 42). The trial court allowed the State to go into the fact that there was a conviction, but prohibited the State from introducing evidence of the facts of the act of Appellant s evading arrest. (RR4, 42). Appellant requested a running objecting to these issues, which the trial court granted. (RR4, 44). Further, each time the extraneous offenses were presented during the innocence/guilty phase of the trial, Appellant renewed his objections under Texas Rules of Evidence 403 and 404(b). (RR4, 130, , 154, 169, , 206, , 218, 230). Prior to the extraneous offenses being presented to the jury, the trial court admonished the jury, instructing the jury that it cannot consider the evidence for any purpose unless the jury finds and believes beyond a reasonable doubt that Appellant committed any of the extraneous offenses, if any were in fact committed. (RR4, 131). The trial court further admonished the jury that when considering any extraneous offense, it may do so in determining a common plan or Page 24 of 79

25 scheme of Appellant in connection with the offense for which Appellant is on trial. (RR4, 131). Evidence presented during the innocence/guilt portion of the trial regarding the charged offense Jude Garcia lives in Irving, Texas. (RR4, 51-52). Shortly after purchasing a motorcycle on Craigslist, Garcia decided to sell it on Craigslist. (RR4, 49-52, 72). Garcia took a picture of the motorcycle and posted it on Craigslist along with his phone number and full name. (RR4, 65). He did not know how many times the advertisement was viewed by different individuals. (RR4, 65). The advertisement was on Craigslist two to three days. (RR4, 65). Garcia received one call for the purchase of the motorcycle from a person who never showed up. (RR4, 55-57, 72). The next morning, on May 26, 2012, Garcia called the person back and asked if he still wanted to buy the motorcycle. (RR4, 57, 102). The person said no, that he already purchased another one, and hanged up. (RR4, 57, 74). Garcia then noticed two circular holes in each of his garage doors. (RR4, 58-59, 95-96). Garcia pulled up one of the doors, and discovered that the motorcycle was gone. (RR4, 58-60). Neither Garcia nor his wife heard any noises that night. (RR4, 60, 73). Garcia s wife contacted the person, Terry, who was identified as Appellant, and had some communications with Appellant. (RR4, 78-80, , Page 25 of 79

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