Clifford v. State, 03-21-00040-CR

653 S.W.3d 1

Stephen Shepard CLIFFORD, Appellant

v.The STATE of Texas, Appellee

NO. 03-21-00040-CR

Court of Appeals of Texas, Austin.

Filed: May 12, 2022

Discretionary Review Refused September 07, 2022

Stacey M. Soule, Austin, Allison Palmer, for Appellee.

Don Payne, for Appellant.

Before Justices Goodwin, Baker, and Triana

OPINION

Thomas J. Baker, Justice

Stephen Shepard Clifford was charged with aggravated robbery, and the indictment included an enhancement paragraph alleging that he had a prior felony conviction. See Tex. Penal Code §§ 12.42, 29.02 -.03. At the conclusion of the guilt-innocence phase, Clifford was convicted of the aggravated robbery. During the punishment phase, Clifford pleaded true to the enhancement allegation and was sentenced to thirty years’ imprisonment. See id. § 12.42. In two related issues on appeal, Clifford challenges the trial court's ruling admitting evidence of another aggravated robbery during the guilt-innocence phase. We will affirm the trial court's judgment of conviction.

BACKGROUND

Clifford was charged with committing aggravated robbery at a Stripes convenience store in Sterling City, Texas, on June 23, 2019. The offense occurred shortly after 6:00 a.m. During the trial, surveillance footage from the convenience store was admitted into evidence and published to the jury. On the recordings, an individual enters the store holding a gun and wearing a green hoodie, a black and white skull full-face mask, black gloves, black shoes with another lighter color on them, and light jeans with decorative markings above the knees. After the masked individual points the gun at a customer approaching the register, the customer steps back from the register. The masked individual then points the gun at an employee behind the register and demands that the employee open the cash register drawer. While the employee opens the drawer, the masked individual points the gun at another customer eating breakfast at a table and tells the customer not to call the police. After the employee presents the cash register drawer, the individual grabs the money from the drawer. Before leaving the store, the individual points the gun at the employee and a customer and threatens to shoot them before firing a shot into the ceiling of the store. The recording also shows another individual waiting outside the store. After the offender in the store leaves the store, he and the person outside quickly leave the premises.

At trial, the store employee as well as the two customers testified regarding the incident. The employee described the offender in the store as a white man wearing a hoodie and a mask and as carrying a black pistol. The employee did not identify Clifford as being involved in the offense and admitted when recalled to the stand that he could not recognize or identify the offenders. The individual sitting in the dining area testified that he saw the man wearing a mask in the store but also saw a man outside the store aiming a gun at him through a window, that the man in the store fired a shot before both men ran, and that the two men fired three shots while they were outside. The other customer described the man in the store as wearing a skull mask, a green hoodie, and light-colored jeans. Neither customer identified anyone involved in the robbery.

Besides the evidence concerning the charged offense, the State presented evidence regarding a robbery that occurred in a Midland, Texas, hotel approximately sixty-five miles away from Sterling City. The Midland robbery occurred about one hour before the Sterling City robbery. Surveillance footage from inside the hotel was admitted into evidence. On the recordings, two men are seen entering the hotel's lobby. The first man is wearing a green hoodie, a black mask with a skull on it, black gloves, light blue jeans with decorative markings above the knees, and black and yellow shoes, and the man is holding a black pistol. The second man is wearing black pants, a green long-sleeve shirt, white sandals, and a dark cloth mask, and the second man is holding a chrome handgun. Both men jump over the hotel counter, head toward a back room behind the counter, point their weapons at a hotel employee, threaten to shoot the employee, and tell the employee to open the hotel's safe. The hotel employee directs them to a drawer behind the counter where money was stored and hands the men the money. The men then direct the employee to the back room before they leave the hotel.

The hotel employee testified regarding the events captured on the recording. In addition, the hotel employee described the man wearing the skull mask as Caucasian with tattoos resembling spikes or horns around his eyes that could be seen even though he was wearing a mask. The employee admitted that he did not recognize either man.

During its case, the State presented testimony from two individuals allegedly involved in both robberies. One of the individuals was Clayton Sessom who testified that he, Robert Ritterpusch, and Clifford met at his parents’ home before driving to the Midland/Odessa, Texas, area in Ritterpusch's red Hyundai and then committing the Midland and Sterling City robberies on the way back to his parents’ home. Sessom explained that Ritterpusch parked the car during the robberies and waited. Regarding both offenses, Sessom testified that Clifford wore the mask with a skull on it.

During Sessom's testimony, he explained that a photograph admitted into evidence showed Clifford, Ritterpusch, and him at his parents’ home and showed Ritterpusch's vehicle that they used when driving on the morning in question. That photo shows three individuals holding weapons while sitting on a porch. One of those individuals identified as Clifford at trial was white, had on light colored jeans with decorative marks above the knees, and had spike tattoos on his face near his eyes.

At trial, Ritterpusch also testified regarding the morning in question and explained that he drove his car to where the robberies occurred. However, Ritterpusch also testified that he was alone, did not recall seeing Clifford that day, had been high that day, and could not identify anyone from the surveillance footage. Following Ritterpusch's testimony, the mother of Ritterpusch's ex-girlfriend testified that she helped Ritterpusch purchase his red Hyundai and described her efforts to recover the vehicle after Ritterpusch was arrested. Specifically, she related that she reached out to Clifford through his Facebook account and that the person responding from the account told her where to find the vehicle.

As part of the police investigation in this case, the police seized and analyzed cell phones belonging to Clifford and Ritterpusch, and several officers testified regarding efforts they made to analyze the contents of the phones and ascertain their locations in the hours leading up to and following the robbery at the convenience store.

After considering the evidence presented at trial, the jury convicted Clifford of the offense of aggravated robbery. Clifford appeals the trial court's judgment of conviction.

DISCUSSION

In his first issue on appeal, Clifford argues that the trial court abused its discretion by admitting evidence regarding the Midland robbery because the evidence was not relevant and could not help establish his identity as the perpetrator of the charged offense. In his second issue, Clifford argues that the trial court abused its discretion by failing to exclude the evidence regarding the Midland robbery because the probative value of that evidence was outweighed by the danger of unfair prejudice.

Extraneous Offense Evidence

When presenting his first issue, Clifford acknowledges that extraneous-offense evidence may be admitted in certain circumstances and that the State related that it was offering the evidence of the Midland robbery for the purpose of establishing Clifford's identity as the Sterling City offender. See Tex. R. Evid. 404(b). However, Clifford argues that extraneous-offense evidence may only be admitted to prove identity when identity has been made an issue in the case. See Page v. State , 137 S.W.3d 75, 78 (Tex. Crim. App. 2004) (explaining "[f]or proof of identity to be a valid purpose" under Rule 404(b), "it must be an issue in the case"); Lane v. State , 933 S.W.2d 504, 519 (Tex. Crim. App. 1996) (same). Further, Clifford highlights that he made no opening statement and had not cross-examined any of the State's witnesses on the issue of identity at the time that the State offered the extraneous-offense evidence and, therefore, argues that he did not make identity an issue. Additionally, Clifford contends that because the extraneous-offense evidence was not admissible to establish identity, the evidence constituted impermissible character-conforming evidence. See Tex. R. Evid. 404. Moreover, Clifford notes that the hotel employee could not identify Clifford as one of the offenders and that the surveillance footage from the hotel showed that the offenders were wearing masks and other concealing clothing and, therefore, argues that the evidence is not relevant because it could not make his identity as the offender at the convenience store any more or less probable. See id. R. 401, 402.

Appellate courts review a trial court's ruling regarding the admission or exclusion of evidence for an abuse of discretion. See Tillman v. State , 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). Under that standard, a trial court's ruling will only be deemed an abuse of discretion if it is so clearly wrong as to lie outside "the zone of reasonable disagreement," Lopez v. State , 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is "arbitrary or unreasonable," State v. Mechler , 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided that the trial court's decision "is reasonably supported by the record and is correct under any theory of law applicable to the case." Carrasco v. State , 154 S.W.3d 127, 129 (...