Absalom Seneca Owens v. State ( 2012 )

Affirmed and Memorandum Opinion filed August 14, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-11-01059-CR
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ABSALOM SENECA OWENS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1304614
MEMORANDUM OPINION
Appellant, Absalom Seneca Owens, was convicted of aggravated robbery with a
deadly weapon and sentenced to fifteen years in prison. On appeal, he argues that the trial
court erred in allowing a State witness to testify that appellant used a real firearm in a prior
robbery. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 29, 2011, appellant walked into a Houston-area Ford dealership and
expressed interest in buying a Ford F-450 King Ranch “dually” truck. He was greeted by
an employee named Dave Lumpkin. Appellant gave Lumpkin his driver’s license and
proof of insurance, which explicitly noted the VIN number of the vehicle he came to view.
Appellant and Lumpkin left on a test drive. Almost immediately after pulling out of the
dealership, appellant departed from the directed route and pulled over into a parking lot.
Lumpkin looked down at the center console to see appellant holding a gun, and appellant
told him to get out of the vehicle. Lumpkin complied and appellant drove away in the
truck.
Appellant was charged with aggravated robbery with a deadly weapon. Appellant
opted for a bench trial. His sole argument at trial was that he had not used an actual
firearm when he had stolen the truck, but instead had used a BB gun that looked like a real
gun. Lumpkin testified that he was “positive” that the gun used was not a BB gun.
Appellant took the stand and maintained that it would not have been legally possible for
him to purchase an actual gun because he was a felon and is barred from purchasing
firearms.
After appellant’s testimony, the State called a rebuttal witness by the name of
Michael Reese to testify that appellant had used a real gun in a remarkably similar
aggravated robbery two years earlier. Over appellant’s relevance and Rule 404
objections, Reese testified that when he was working at a Ford dealership in 2009,
appellant came to the lot and, as in the charged offense, asked to see a Ford F-450 “dually.”
At the time, by his own admission, appellant was a felon.1 Appellant presented Reese
with his driver’s license and insurance card, which, as in the present case, explicitly noted
the VIN number of the vehicle he came to view. According to Reese, he and appellant
proceeded to go on a test drive and appellant veered off the normal route. Reese testified
that appellant pulled off the road, showed him a semiautomatic gun, and told him to exit the
vehicle. After Reese complied, appellant drove away in the truck. Reese testified that he
was “100 percent” certain that the gun appellant had used was real. Reese stated that he
had familiarity with both semiautomatic weapons and BB guns, and that the motion he saw
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Appellant admitted that he had been convicted in 2008 for unauthorized use of a motor vehicle.
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appellant make when he chambered the round was a “totally different motion” from what
he has personally experienced with BB pistols and BB rifles.
The trial court found appellant guilty of aggravated robbery and sentenced him to
fifteen years in prison. In his sole issue on appeal, Owens argues that the trial court erred
when it admitted Reese’s testimony.
II. ANALYSIS
We review a trial court’s ruling on admissibility of extraneous offenses under an
abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.
2009). We will not reverse a trial court’s ruling on evidentiary matters unless the decision
was outside the zone of reasonable disagreement. Winegarner v. State, 235 S.W.3d 787,
790 (Tex. Crim. App. 2007). If the trial court’s ruling can be justified on any theory of
law applicable to that ruling, the ruling will not be disturbed. De La Paz, 279 S.W.3d at
345 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982) (“When a trial
court’s ruling on the admission of evidence is correct, although giving a wrong or
insufficient reason, this Court will not reverse if the evidence is admissible for any
reason.”)).
Relevant evidence of the defendant’s bad character is generally not admissible in
order to show that he acted in conformity with that bad character. TEX. R. EVID. 404(b).
However, evidence of an extraneous offense may be admissible under Rule 404(b) to show
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Id. Extraneous-offense evidence is admissible when it is offered to
rebut a defense issue that negates one of the elements of the crime charged. Casey v.
State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). To be admissible on this basis, the
evidence must logically serve to make more or less probable (1) an elemental fact, or (2)
defensive evidence that undermines an elemental fact. Martin v. State, 173 S.W.3d 463,
466 (Tex. Crim. App. 2005) (citing Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim.
App. 1990)). Similarly, extraneous-offense evidence is admissible to rebut a false
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impression created by the defendant. Daggett v. State, 187 S.W.3d 444, 453 (Tex. Crim.
App. 2005). “Where a witness creates a false impression of law abiding behavior, he
‘opens the door’ on his otherwise irrelevant past criminal history and opposing counsel
may expose the falsehood.” Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993).
Under this exception, “when a witness’s blanket assertion of exemplary conduct is directly
relevant to the offense charged, the opponent may both cross-examine the witness and
offer extrinsic evidence rebutting the statement. Winegarner, 235 S.W.3d at 790-91
(quoting Daggett, 187 S.W.3d at 453 n.24 (internal quotation marks omitted)).
In this case, appellant’s testimony created the false impression that he could not
obtain a real gun because he was a felon. This false impression was directly relevant to
the charged offense, and served to undermine an elemental fact—that the gun used was a
real gun. Reese’s testimony that appellant had access to a real gun in 2009 despite his
status as a felon at that time corrected this false impression and thereby served to rebut
appellant’s testimony that he did not use a real gun. Reese’s testimony was therefore
admissible to rebut appellant’s testimony and the false impression it created.
Reese’s testimony was also admissible as proof of appellant’s modus operandi.
See Casey, 215 S.W.3d at 880. The proponent of modus operandi evidence must show
that the extraneous offense was nearly identical in method to the charged offense so “‘as to
earmark them as the handiwork of the accused.’” Owens v. State, 827 S.W.2d 911, 915
(Tex. Crim. App. 1992) (quoting Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App.
1981)). Under the theory of modus operandi, the proposed evidence is relevant because
the pattern and characteristics of the crime with which the defendant has been charged and
of the extraneous offense are so distinctively similar that they constitute a signature.
Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008). Although the theory of
admissibility for modus operandi usually refers to evidence offered to prove identity, it is
not limited to that purpose alone. Casey, 215 S.W.3d at 881. Modus operandi may
include the theory of “doctrine of chances” to show motive, the manner of committing an
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offense, or lack of consent. Id. The doctrine of chances posits that highly unusual events
are not likely to repeat themselves inadvertently or by happenstance. De La Paz, 279
S.W.3d at 347.
Here, Reese’s testimony shows appellant’s “distinctive and idiosyncratic manner”
of committing aggravated robbery. At the time of their respective robberies, both
Lumpkin and Reese were employed at Ford dealerships. Lumpkin and Reese each
testified that appellant had expressed interest in Ford F-450 “dually” trucks. Appellant
provided to both Lumpkin and Reese his license and an insurance card representing a
policy he purchased for the very truck he came to test drive. In both cases, appellant
immediately veered from the pre-determined route, pulled over, brandished a weapon, and
told the employee to exit the vehicle. Both Lumpkin and Reese testified that the weapon
that appellant used was a semiautomatic firearm. Both complainants described appellant
holding the gun in his left hand. Both complainants stated that when they exited the
trucks, appellant drove away in the truck. Lumpkin testified that he was “positive it
wasn’t a BB gun.” Reese also testified that he was 100% certain that appellant used a real
gun in the 2009 robbery. The remarkable similarities between the two robberies plainly
add up to a “signature,” and the testimony was admissible to show appellant’s opportunity,
intent, preparation and plan to commit an aggravated robbery. Because Reese’s testimony
was admissible on either of these two bases, the trial court did not abuse its discretion in
admitting it. We overrule appellant’s sole issue on appeal.2
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Appellant also argues that the testimony was inadmissible under Rule 403 because its probative value was
substantially outweighed by its prejudicial effect. However, he objected to Reese’s testimony only on
relevance and Rule 404 grounds and therefore failed to preserve his Rule 403 argument for appeal. See
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (a motion which states one legal theory
cannot be used to support a different legal theory on appeal).
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III. CONCLUSION
We affirm the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Justices Boyce, Jamison, and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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