Darrell Lynn Holleman v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00173-CR
________________________
DARRELL LYNN HOLLEMAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 84th District Court
Hutchinson County, Texas
Trial Court No. 10,889; Honorable William D. Smith, Presiding
December 3, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Following a plea of not guilty, Darrell Lynn Holleman was convicted by a jury of
unlawful possession of a firearm, enhanced, and sentenced to fifteen years confinement
and a $5,000 fine.1 By a sole issue, Appellant maintains the trial court abused its
1
TEX. PENAL CODE ANN. § 46.04(a)(1) (West 2011). The offense is a third degree felony. Id. at
46.04(e). The jury found the enhancement allegation of aggravated assault to be true and Appellant was
sentenced for a felony of the second degree. Id. at 12.42(a).
discretion and denied him due process and equal protection of law when it admitted,
over objection, a handgun as “similar” to the firearm he allegedly possessed. We affirm.
BACKGROUND
Appellant was convicted in 2009 for aggravated assault with a deadly weapon
and sentenced to three years confinement. He was released in 2011.2 During the
evening on April 12, 2012, officers were dispatched to a domestic disturbance call to a
home where Appellant was living with his girlfriend. Numerous other relatives of
Appellant’s girlfriend were also living there, including her adult daughter, son-in-law and
grandchildren. Several visitors were also at the home that evening.
Appellant, who was intoxicated, and one of the visitors engaged in an argument
which escalated when Appellant retrieved his girlfriend’s gun, a black 9 millimeter
pistol,3 from a bedroom closet and threatened the visitor. One of the residents called
911 while Appellant’s girlfriend’s son-in-law attempted to disarm Appellant. He was
unable to take the gun from Appellant but was able to release the clip.
When officers arrived, Appellant was no longer in possession of the weapon.
According to Appellant’s girlfriend, she accompanied an officer to the bedroom closet so
he could note the gun’s serial number. The officer did not seize the gun. She had no
explanation for how the gun had been returned to the closet shelf after the incident
which led to the 911 call. Appellant advised the corporal he had previously been
2
Section 46.04(a)(1) of the Penal Code provides in part that a felon commits an offense if he
possesses a firearm after conviction and before the fifth anniversary following his release.
3
Pawn shop business records established that the firearm possessed by Appellant was a “Hi-
Point C9 Serial #P071120 pistol” and his girlfriend had recently purchased it in March 2012.
2
incarcerated for a felony and the corporal arrested him for unlawful possession of a
firearm by a felon.
Appellant’s girlfriend posted bond, and he was released the next day and
resumed living with his girlfriend. A week after his arrest, an officer called and asked to
come by to photograph the gun. Appellant’s girlfriend met the officer at her home, but
when they looked in the closet, the gun was missing. It was not found in the house.
When questioned by his girlfriend about the gun, Appellant responded with violence and
told her “it would never be found.”
The gun was never recovered. During trial, a “similar” gun was admitted over
defense counsel’s relevance objection. Multiple witnesses testified that the gun
depicted was “substantially similar in every way,” “very similar,” “almost exactly like,”
and “substantially the same” as the actual gun brandished by Appellant on the occasion
in question. Specifically, during her testimony, Appellant’s girlfriend confirmed the
State’s exhibit was “substantially similar” to her gun. The State responded to
Appellant’s trial objection by arguing the gun was solely being used as “demonstrative
evidence.” The defense requested and was granted a jury instruction that the gun was
not the actual firearm used by Appellant and was only being admitted for demonstrative
purposes.4
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Prior to publication of the exhibit to the jury, the trial court instructed the jury as follows:
The jury will be instructed that this is not the exact gun. This is done only for
demonstrative purposes only. And the jury will consider the evidence only for those
purposes.
A similar instruction was not, however, included in the Charge of the Court at the guilt/innocence phase of
trial.
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STANDARD OF REVIEW
Demonstrative evidence is admissible in a criminal trial if it tends to solve some
issue in the case and is relevant—i.e., if it has evidentiary value. Simmons v. State, 622
S.W.2d 111, 113 (Tex. Crim. App. 1981). A trial court’s admission of demonstrative
evidence is reviewed for abuse of discretion. Id. It is within the trial court’s discretion to
admit into evidence a similar type weapon or instrument used in the commission of an
offense if it is relevant and material to an issue in the trial, is not overly inflammatory,
and the original, if available, would have been admissible. Id. A weapon described as
“like,” “similar to,” “pretty much the same,” and comparable words or phrases are
admissible as an aid to the jury in interpreting and understanding the testimony adduced
at trial. Id. at 113-14.
ANALYSIS
Appellant asserts the trial court abused its discretion in admitting, over objection,
a handgun as “similar” to the firearm he allegedly possessed. We disagree.
The following is the test for admission of demonstrative evidence: (1) the original
is not available; (2) if available, the original would be admissible; (3) it is relevant and
material to an issue in controversy; (4) its probative value outweighs any inflammatory
effect; and (5) the jury is instructed that the object is not the object used in the
commission of the crime and is to be considered by the jury solely as evidence that
demonstrates or illustrates what the object used in the offense looks like. Miskis v.
State, 756 S.W.2d 350, 352 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d)
(emphasis in original).
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Appellant argues State’s Exhibit No. 1 consisting of a “similar” gun was neither
relevant nor material to an issue at trial because possession was not disputed. He
asserts the prejudicial effect of a “similar” gun outweighed its probative value. Relying
on Orrick v. State, 36 S.W.3d 622, 626 (Tex. App.—Fort Worth 2000, no pet.), he
maintains that admission of a similar gun was unnecessary to resolve an element of the
case—it was not relevant and material to an issue in controversy when several
witnesses and pawn shop business records established his possession of a firearm.
The evidence established the original gun was not available. Had the gun been
located it would have been admissible as direct evidence to establish Appellant
possessed a firearm. The jury was properly instructed that the exhibit was not the
actual gun in question and was being admitted for demonstrative purposes only.
Although the similar gun’s probative value was slight, it did not have an inflammatory
effect. During deliberations, the jury did submit three questions to the trial court, but
none were regarding the demonstrative evidence.
Appellant’s arguments notwithstanding, the gravamen of the charged offense
was that he was a felon and he possessed a firearm. During trial there was questioning
on whether Appellant could have possessed a pellet or BB gun. Such guns are not
considered firearms. See Perez v. State, No. 07-12-00451-CR, 2014 Tex. App. LEXIS
5630, at *2-3 (Tex. App.—Amarillo May 23, 2014, pet. ref’d) (mem. op., not designated
for publication) (reforming judgment to reflect a BB gun is not a firearm). Thus, it was
relevant and material to show the jury a similar gun to the one possessed by Appellant
on the night in question. Applying Simmons and the test in Miskis, we conclude the trial
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court did not abuse its discretion by admitting a “similar” gun as demonstrative
evidence. Appellant’s sole issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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