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decided: April 28, 1988.


On appeal from the 267th District Court of Victoria County, Texas.


Hon. Lynn Knaupp, Victoria, Texas.

Hon. George J. Filley, III, Victoria, Texas.

Paul W. Nye, C.j.; Robert J. Seerden, and Fortunato P. Benavides, JJ.

Author: Nye

Appellant appeals his conviction by a jury of the aggravated robbery of Margaret Totah. The jury assessed punishment at 99 years in the Texas Department of Corrections with a $3000.00 fine. Appellant presents seven points of error for review.

By his first five points, appellant contends that evidence of an extraneous offense committed shortly before the robbery of Margaret Totah was improperly admitted into evidence. At trial, the prosecutor introduced evidence that Leslie Montag, owner of a grocery store in Victoria, Texas, was robbed at gunpoint around 12:30 p.m. on January 10, 1987. The assailant, a lone male, entered the store, exhibited a silver gun and demanded money. Montag surrendered approximately $1900.00 in cash, some of which was bound with an H.E.B. wrapper.

Within an hour of the Montag robbery, Margaret Totah, owner and desk clerk of Totah's Motel in Victoria, Texas, was also robbed at gunpoint. A lone male entered the motel, exhibited a silver gun and demanded money. Totah gave him cash from the money drawer and a yellow envelope containing the deposit from the morning shift. This envelope was dated and signed by a motel employee.

Immediately after the assailant exited, Totah and others hurried to a nearby window. They saw a gray sports car with a dark top speeding away from the motel, heading towards Houston. Police were alerted and a bulletin was issued. About a half-hour later, at a point which is approximately a twenty five minute drive from Victoria, a car matching this description was observed. A license plate check revealed that the vehicle was stolen. When police attempted to stop the vehicle, a prolonged, high speed chase ensued with speeds exceeding 110 miles per hour. The two occupants of the car were finally apprehended when appellant, the driver, lost control of the car.

Totah later identified the passenger, John Deaton, as the person who robbed her. The yellow envelope taken from Totah was found in the car, along with a silver gun. Both Totah and Montag identified this gun as similar to the one used against them. Money bound with an H.E.B. wrapper was found on appellant's person at his arrest approximately an hour and a half after Montag had been robbed. Montag identified this money as that which was taken from him when he was robbed, but was unable to identify his assailant.

Appellant and John Deaton were separately indicted for the armed robbery of Totah. Appellant went to trial before Deaton.

Appellant timely objected to the admission of the extraneous offense. The general rule on the admission of extraneous offenses is that an accused is entitled to be tried on the accusation made in the State's pleading and not on some collateral crime, or for being a criminal generally. Cantrell v. State, 731 S.W.2d 84, 88 (Tex. Crim. App. 1987). An exception to this general rule is that evidence of extraneous offenses may become admissible upon a showing by the prosecution both that the transaction is relevant to a material issue in the case, and the relevancy value of the evidence outweighs its inflammatory or prejudicial potential. Cantrell, 731 S.W.2d at 89; Plante v. State, 692 S.W.2d 487, 491 (Tex. Crim. App. 1985).

In the instant case, the State contends that the extraneous offense was necessary to prove that appellant was a party to the motel robbery. There was no direct evidence showing appellant's participation in the Totah robbery. An extraneous offense is admissible to prove identity if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. Castillo v. State, 739 S.W.2d 280, 289 (Tex. Crim. App. 1987); Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985). Hence, the admission of the extraneous offense was relevant to the issue of identity which the State had to prove.

Further, the probative value of the extraneous offense outweighed any prejudicial effect it might have had. Three factors have been used to measure the probative value of an extraneous offense: (1) presence of similarity between the prior act and the offense charged, (2) closeness in time of the extraneous act to the charged offense, and (3) the availability ...

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