Kenneth Allen Ross v. State
01-14-00902-CR
| Tex. App. | Jun 30, 2015Background
- Appellant Kenneth Allen Ross was convicted of aggravated robbery; jury assessed 40 years and $5,000 after one enhancement found true. The State presented extraneous-offense evidence during punishment.
- Charged offense (Aug 26): Family Dollar robbery at closing; robber wore hoodie, black cap, black-framed glasses, used a semiautomatic pistol, forced employees to open safe, took registers and left via back door alarm; appellant was caught nearby with bag, phone, and pistol and identified at scene.
- Two extraneous robberies (June 3 and June 21, 2013): both robberies of discount stores near closing, involved forcing managers to open safes, use of firearms, victims compelled to lie down and surrender cell phones temporarily, and presence of an accomplice/phone communications.
- At punishment, the State introduced evidence of the June 21 robbery (video/screenshots; witness 70% identification) and the June 3 robbery (witness ID; similar attire and gun). Defense moved to strike the June 21 evidence for insufficiency; trial court denied the motion but instructed jury to consider extraneous-offense evidence only if proven beyond a reasonable doubt.
- On appeal the State defends the admission of the June 21 evidence, arguing modus operandi similarities plus the tentative eyewitness ID made it reasonable for a factfinder to find the appellant committed that extraneous robbery beyond a reasonable doubt; alternatively any error was harmless given jury instructions and other punishment evidence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Ross) | Held |
|---|---|---|---|
| Whether evidence supporting the June 21 extraneous robbery was sufficient for admission in punishment (must be shown beyond a reasonable doubt) | Modus operandi similarities across three robberies (store type, timing, safe procedure, attire, phone use, accomplice behavior, matching cap/logo, black-framed glasses) + witness ~70% ID permit a rational factfinder to find the appellant committed June 21 beyond a reasonable doubt | Evidence was insufficient to prove appellant committed the June 21 robbery beyond a reasonable doubt; therefore it should be excluded from punishment | Trial court denied motion to strike and admitted the June 21 evidence with limiting instruction; State argues no abuse of discretion in that decision |
| If admission was error, whether it was harmful | Even if admission erred, repeated jury instructions that extraneous offenses count only if proven beyond a reasonable doubt and strong remaining punishment evidence (June 3 robbery, prior convictions) render any error non-reversible under Texas Rule 44.2(b) | Admission of an unproven extraneous offense could have improperly increased punishment | State argues any error was harmless; trial court’s limiting instructions weigh against reversal |
Key Cases Cited
- Thompson v. State, 4 S.W.3d 884 (Tex. App.—Houston [1st Dist.] 1999) (trial court must determine extraneous-offense proof before admitting in punishment)
- Page v. State, 213 S.W.3d 332 (Tex. Crim. App. 2006) (use of extraneous offenses and modus operandi to prove identity)
- Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005) (distinctive similarities among offenses can support that the same actor committed them)
- Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998) (presumption that juries follow limiting instructions)
- Apolinar v. State, 106 S.W.3d 407 (Tex. App.—Houston [1st Dist.] 2003) (discussing admission of extraneous offenses in punishment and harm analysis)