Summary
describing "Snapchat" as " cell[ular] [tele]phone . . . application"
Summary of this case from In re T.S.Opinion
No. 07-19-00046-CV
05-06-2020
IN THE MATTER OF X.M.
On Appeal from the 99th District Court Lubbock County, Texas
Trial Court No. 2013-764,893; Honorable William R. Eichman II, Presiding
MEMORANDUM OPINION
Before PIRTLE, PARKER, and DOSS, JJ.
This is an appeal from an adjudication, following a jury trial, that Appellant, X.M., a minor, engaged in two counts of delinquent conduct by committing the offense of aggravated robbery when he was fifteen years old. Appellant raises two issues on appeal. First, he argues the trial court erred when it denied his motion to suppress evidence found on his cell phone because the affidavit, search warrant, and subsequent search were not sufficiently particular to warrant the intrusion. Second, he asserts the trial court erred when it admitted photographic evidence showing Appellant with a gun, flashing a gang sign while holding a stack of cash. We affirm the judgment of the trial court.
To protect the privacy of the juvenile, we will refer to him by his initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2019).
TEX. PENAL CODE ANN. § 29.03 (West 2019). This is delinquent conduct pursuant to section 51.03 of the Family Code. See TEX. FAM. CODE ANN. § 51.03 (West Supp. 2019).
BACKGROUND
Late one night in October 2017, a man wearing a mask robbed employees of Logan's Roadhouse restaurant at gunpoint. The masked man demanded and took money from the restaurant's safe, stealing approximately $7,000. After reviewing surveillance videos, police determined one of the employees, Michael Guerra, acted as an "inside man" and helped the person who robbed the restaurant gain entry. Additional investigation led police to Appellant and his cousin.
One of the instances of delinquent conduct the grand jury found probable cause to believe Appellant committed was the offense of aggravated assault with a deadly weapon. With respect to that offense, Appellant was accused of shooting a man, Vincent Rosales, in the stomach. During the investigation of that offense, a juvenile witness told police Appellant used his cell phone to show her a news article about the shooting and told her he was involved. She also said she saw "Snapchat" pictures on Appellant's cell phone showing him with other males the night of the shooting. When Appellant was arrested on that offense, the police seized his cell phone. Based on the information gained during the investigation, the police then sought a search warrant to authorize a search of the contents of Appellant's cell phone. The affidavit in support of the request for issuance of a search warrant asked for a warrant authorizing a search "including but not limited to: address books; recently called numbers; recently received numbers; digital images; and text messages." Based on that affidavit, a search warrant was issued authorizing police to search the cell phone for items "including but not limited to: Telephone numbers; internet history; recently called and received numbers; recent calls; recent missed calls; text messages; address books; third party applications; social media applications; photographs or digital images." The phone's contents were subsequently downloaded and part of the information downloaded included the two photographs at issue in this appeal. One shows Appellant with a gun in his lap. The other shows Appellant standing in front of a building flashing a gang sign and holding a stack of cash.
The State elected to proceed to trial on the portions of the amended petition alleging Appellant engaged in delinquent conduct by committing the aggravated robberies of Chris Garcia and William Kastor. The portions of the amended petition alleging Appellant engaged in other delinquent conduct, including the aggravated assault with a deadly weapon against Vincent Rosales, was not tried in this proceeding.
Information from Appellant's cell phone was initially obtained through the use of a passcode provided to police by Appellant. The downloaded information that Appellant complains about on appeal was obtained through a subsequent download obtained through police use of a "Gray Key device," not by use of the passcode provided by Appellant.
Prior to trial, Appellant filed a motion to suppress these photographs, arguing among other things that they were more prejudicial than probative and were duplicative of other evidence. See TEX. R. EVID. 403. The trial court denied the motion to suppress and filed findings of fact and conclusions of law in support of its ruling. During trial, the jury was permitted to view the challenged photographs.
After hearing the evidence, the jury found Appellant robbed two employees of Logan's Roadhouse, an act that constituted delinquent conduct pursuant to the provisions of chapter 51 of the Texas Family Code. Following the return of the jury's verdict, the trial court sentenced Appellant to a determinate sentence of twenty-five years "in compliance with the provisions of Chapter 61, Texas Human Resources Code."
The provisions of chapter 61 of the Texas Human Resources Code were repealed and replaced by Acts 2011, 82nd Leg., ch. 85 (S.B.653), effective December 1, 2011.
ANALYSIS—DENIAL OF MOTION TO SUPPRESS
Through his first issue, Appellant argues the trial court erred when it denied his motion to suppress evidence found on his cell phone.
The same scope and standard of review used in criminal cases is used in the review of a juvenile court's ruling on a motion to suppress. In re S.J., 977 S.W.2d 147, (Tex. App.—San Antonio 1998, no pet.). At a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the credibility of witnesses and the weight to be given their testimony. State v. Kaplan, No. 07-16-00135-CR, 2017 Tex. App. LEXIS 395, at *5-6 (Tex. App.—Amarillo Jan. 18, 2017, no pet.) (mem. op., not designated for publication). Reviewing its ruling, we afford almost total deference to a trial court's determination of the historical facts that the record supports, particularly when its fact findings are based on an evaluation of credibility and demeanor. Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We afford the same amount of deference to trial courts' rulings on "application of law to fact questions" if the resolution of those ultimate questions turns on an evaluation of the credibility and demeanor of a witness. Id. (citation omitted). When reviewing a magistrate's decision to issue a warrant, appellate courts apply a highly deferential standard of review because of the constitutional preference for searches conducted pursuant to a warrant over warrantless searches. State v. McLain, 337 S.W.3d 268, 271-72 (Tex. Crim. App. 2011). Consequently, when ruling on a motion to suppress evidence obtained pursuant to a search warrant, a trial court is limited to the "four corners" of the warrant and affidavit supporting the warrant. Id. at 271. The affidavit is interpreted in a non-technical, commonsense manner drawing reasonable inferences exclusively from the facts and circumstances contained within the four corners of the affidavit. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013). "When in doubt, we defer to all reasonable inferences that the magistrate could have made" that are supported by the record. Id. See Barrett v. State, 367 S.W.3d 919, 922 (Tex. App.—Amarillo 2012, no pet.) (quoting Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007)).
The erroneous admission of evidence over a valid Fourth Amendment objection is error of constitutional dimension. Taunton v. State, 465 S.W.3d 816, 824 (Tex. App.—Texarkana 2015, pet. ref'd). If an error is constitutional in nature, an appellate court must reverse the judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a). In applying this "harmless error" test, we inquire whether there is a "reasonable possibility" that the error might have contributed to the conviction or punishment. Love v. State, 543 S.W.3d 835, 846 (Tex. Crim. App. 2016) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)).
When the trial court makes express findings of fact, we view the evidence, State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006), and the court's factual findings, State v. Granville, 423 S.W.3d 399, 404 (Tex. Crim. App. 2014), in the light most favorable to the trial court's ruling on the motion.
As set forth in the trial court's Findings of Fact, police obtained Appellant's cell phone from his person on November 8, 2017, as part of a search incident to his arrest for aggravated assault. Shortly after obtaining the cell phone, a detective requested and received the passcode from Appellant. Police subsequently applied for and obtained a search warrant to search the entire contents of Appellant's cell phone. Police downloaded the contents of Appellant's cell phone and generated a report of those contents on November 9, 2017. On September 27, 2018, a second search warrant based on an affidavit containing information nearly identical to that of the first was issued. The second affidavit did not rely on any information obtained as a result of the initial cell phone download.
Police later discovered the passcode initially provided by Appellant was incorrect. Police later obtained the correct passcode from Appellant.
After the second search warrant was issued, a police investigator used a program called "Gray Key" to attempt to unlock the cell phone. Through use of the "Gray Key" program, police were able to unlock Appellant's cell phone. A detective then took possession of the cell phone and downloaded the contents and generated a new report of those contents. Both search warrants and supporting affidavits were entered into evidence at the November 2018 suppression hearing. The trial court suppressed the results of the initial cell phone download but denied Appellant's motion to suppress the results of the second cell phone download. It is this ruling Appellant now challenges, arguing the affidavit, search warrant, and subsequent search were not sufficiently particular, and the search was therefore overbroad.
With regard to searches, the Fourth Amendment includes a particularity requirement. Bonds v. State, 403 S.W.3d 867, 874 (Tex. Crim. App. 2013). That requirement "assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his powers to search." Id. (quoting Groh v. Ramirez, 540 U.S.551, 561, 124 S. Ct. 1284, 157 L. Ed.2d 1068 (2004)). The constitutional objectives of requiring a "particular" description of the place to be searched include: "(1) ensuring that the officer searches the right place; (2) confirming that probable cause is, in fact, established for the place described in the warrant; (3) limiting the officer's discretion and narrowing the scope of his search; (4) minimizing the danger of mistakenly searching the person or property of an innocent bystander or property owner; and (5) informing the owner of the officer's authority to search that specific location." Id. at 874-75 (citing Long v. State, 132 S.W.3d 443, 447 (Tex. Crim. App. 2004)).
The items to be seized must be "described with sufficient particularity such that the executing officer is not left with any discretion to decide what items may be seized." Farek v. State, No. 01-18-00385-CR, 2019 Tex. App. LEXIS 5274, at *18-20 (Tex. App.—Houston [1st Dist.] June 25, 2019, pet. ref'd) (mem. op., not designated for publication) (citation omitted). But, the requirements for the particularity of the description of an item may vary "according to the nature of the thing being seized" and "[w]hen the circumstances of the crime make an exact description of the instrumentalities of a crime a virtual impossibility, the searching officer can only be expected to describe the generic class of items he wishes to seize." Id. (citations omitted).
Taking these guidelines into consideration, a warrant and supporting affidavit satisfy the Fourth Amendment when it includes facts sufficient to show "(1) that a specific offense has been committed, (2) that the property or items to be searched for or seized constitute or contain evidence of the offense or evidence that a particular person committed it, and (3) that the evidence sought is located at or within the thing to be searched." Farek, 2019 Tex. App. LEXIS 5274, at *19 (citing Sims v. State, 526 S.W.3d 638, 645 (Tex. App.—Texarkana 2017, no pet.) (reviewing cell phone warrant); TEX. CODE CRIM. PROC. ANN. art. 18.01(c) (West Supp. 2019)). The facts set forth in the affidavit must be "sufficient to justify a conclusion that the object of the search is probably [within the scope of the requested search] at the time the warrant is issued." Id. at *19-20 (citing State v. Delagarza, 158 S.W.3d 25, 26 (Tex. App.—Austin 2005, no pet.)).
When the subject of the search is a computer or other electronic device, such as a cell phone, "case law requires that warrants . . . affirmatively limit the search to evidence of specific . . . crimes or specific types of materials." Id. at *20 (citing United States v. Burgess, 576 F.3d 1078, 1091 (10th Cir. 2009)). If a warrant authorizes a search of all computer records without description or limitation, it will not meet Fourth Amendment particularity requirements. Id. (citation omitted). However, a search of "computer records" that is limited to those related to the offense set forth in the affidavit is properly limited. Id. (citation omitted).
Here, the search warrant sought to search Appellant's cell phone, a particular thing. As stated in the trial court's conclusions of law and as supported by the record, the affidavit in support of the request for issuance of a search warrant specifically noted Appellant, a particular person, used his cell phone to show a juvenile witness a news article about the shooting that was the subject of the aggravated assault charge and told her of his involvement in that offense. The witness also stated she saw pictures on Appellant's phone from Snapchat in which Appellant was seen with other males on the same night the shooting occurred. The affiant also stated that based on his training and experience, it is "not uncommon for persons to communicate with other involved persons about an event, whether it is before, during, or after, for persons to access the Internet on their cell phone to access a website or search for transportation, and for pictures or videos to be taken of involved persons or the incident." The affidavit asked for a warrant authorizing a search "including but not limited to: address books; recently called numbers; recently received numbers; digital images; and text messages." The trial court concluded the supporting affidavit showed that various portions of the cell phone could contain evidence of a particular offense based on the nature of the offense and Appellant's use of his cell phone after the offense.
The search warrant authorized police to search the cell phone for items "including but not limited to: Telephone numbers; internet history; recently called and received numbers; recent calls; recent missed calls; text messages; address books; third party applications; social media applications; photographs or digital images." The trial court acknowledged in its conclusions of law that the warrant gave permission to the police to "search for, seize, and conduct a forensic analysis" of Appellant's "entire cell phone, and did not otherwise limit the nature and scope of the search to be conducted." However, the trial court still found the search warrant satisfied the Fourth Amendment's particularity requirement because it "specifically described the cell phone to be searched and authorized a forensic examination of the phone."
Given the inferences to be drawn from the supporting affidavit, the search warrant was not overbroad merely because it failed to specifically describe with particularity the accounts to be searched or the types of electronic data that might be stored on Appellant's cell phone. Consequently, the trial court found the police were authorized to perform a full download of Appellant's phone. Furthermore, we note that the State did not offer all of the downloaded content at trial; rather, it offered only evidence relevant to the aggravated robberies.
On appeal, Appellant argues that the affidavit and search warrant were overbroad because the language "essentially covered the entire contents of the phone." Because the juvenile witness mentioned only a news article and photographs on Snapchat, Appellant asserts, the search should have been narrowed to news articles and Snapchat photographs, not a download of the entire contents of his phone. The State disagrees, contending the affidavit and search warrant authorized a search of Appellant's entire phone because police established a nexus between his cell phone and the aggravated assault offense then being investigated.
We agree with the trial court's conclusion that the police established a nexus between Appellant's cell phone and the aggravated assault shooting offense. See Roberts v. State, Nos. 07-16-00165-CR and 07-16-00166-CR, 2018 Tex. App. LEXIS 1804, at *17 (Tex. App.—Amarillo Mar. 9, 2018, pet. ref'd) (mem. op., not designated for publication) (discussing nexus between item to be searched, a cell phone, and the offenses being investigated). Appellant's cell phone was on his person when he was arrested. A juvenile witness told police Appellant used his cell phone to show her a news article about the shooting and told her he was involved in it. That witness also saw on Appellant's cell phone Snapchat application photographs of Appellant with other males the same night as the offense. Based on this nexus and the other information contained in the affidavit, a reasonable magistrate could have concluded that the warrant satisfied the Fourth Amendment requirement of sufficient particularity. Compare U.S. v. Oglesby, No. 4:18-CR-0626, 2019 U.S. Dist. LEXIS 71238, at *12 (S.D. Tex. April 26, 2019) (finding the particularity requirement was not satisfied when the only statements in the affidavit referencing the defendant's cell phone were part of a template and did not specify the offense of which the cell phone was alleged to contain evidence).
Furthermore, a "search warrant does not violate the requirement of being 'sufficiently particular' merely because its execution might incidentally lead to the discovery of non-offense related evidence." Farek, 2019 Tex. App. LEXIS 5274, at 23. While the general object of the warrant might encompass electronic data that might, under further forensic examination, be identified as non-offense related information, the accompanying affidavit can limit the search protocol to evidence of specific crimes described in the affidavit. Id. Here, the evidence Appellant challenges are two digital photographs, items specifically noted in the search warrant. Given the arguments before us and the state of the record, we cannot find the trial court erred in its denial of Appellant's motion to suppress.
Accordingly, we resolve Appellant's first issue against him.
ADMISSION OF PHOTOGRAPHS OVER APPELLANT'S RULE 403 OBJECTION
By his second issue, Appellant asserts the trial court erred when it admitted photographic evidence, over his Rule 403 unfair prejudice objection, showing him with a gun, flashing a gang sign while holding a stack of cash.
The admissibility of photographic evidence lies within the sound discretion of the trial court. Callaway v. State, 546 S.W.3d 899, 910 (Tex. App.—Amarillo 2018, pet. ref'd) (citing Shuffield v. State, 189 S.W.3d 782, 786 (Tex. Crim. App. 2006)). Its decision to admit or exclude evidence will not be overturned on appeal absent a showing that the trial court abused its discretion. Callaway, 546 S.W.3d at 910 (citing Young v. State, 283 S.W.3d 854, 875 (Tex. Crim. App. 2009)). The Texas Rules of Evidence favor admission of all relevant evidence at trial. Callaway, 546 S.W.3d at 910 (citing Hernandez-Sandoval v. State, No. 07-11-00085-CR, 2012 Tex. App. LEXIS 7660, at *39 (Tex. App.—Amarillo Sep. 6, 2012, pet. ref'd) (mem. op., not designated for publication) (citing TEX. R. EVID. 401)). However, these evidentiary rules do provide exceptions that would exclude otherwise relevant and admissible evidence. Id. (citations omitted).
One exception is that found in Rule of Evidence 403, which provides, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." TEX. R. EVID. 403. When an objection is made on the basis of Rule 403, a court must weigh the probative value of the evidence to see if it is substantially outweighed by its potential for unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needless presentation of cumulative evidence. Callaway, 546 S.W.3d at 910 (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997)). A Rule 403 analysis may include, but is not limited to, consideration of the following factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012) (citing Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1990)).
Likewise, Rule of Evidence 404(b) prohibits evidence of a crime, wrong, or other act from being admitted into evidence to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. TEX. R. EVID. 404(b)(1). However, such evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. TEX. R. EVID. 404(b)(2).
During the first day of Appellant's trial, the court held a hearing concerning the two photographs at issue. One was a picture of Appellant holding a stack of money while flashing a gang sign and the other was a picture of a gun in Appellant's lap. Appellant argued that the picture of him with the money and flashing a gang sign was duplicative because the State could show the jury he was holding money through another picture it planned to admit into evidence. He contended there was no evidence that the crime was gang-related and showing the picture with the gang sign would only inflame the jury. Appellant argued that the picture of the gun in the lap was not relevant, was not admissible on Rule 404(b) grounds, and was substantially more prejudicial than probative under Rule 403. Appellant argued "no one has testified nor has there been any testimony or anything that says that that gun is related to the Logan's robbery."
The State argued that the photograph of Appellant with the gun was relevant. In support of that argument, it pointed to the first photograph of Appellant, time-stamped 11:15 a.m. on October 29, 2017, the morning after the robbery at Logan's. The photograph clearly shows Appellant wearing a red shirt with "very distinct blue jeans that have . . . paint-like marks on them." The State told the court it appeared Appellant was at school because the school could be seen in the background. Appellant was "standing with a very large amount of currency in his hand, and those very particular jeans." The next photograph, time-stamped 4:39 that same day, shows him with a very large amount of cash and wearing those "same jeans." The next photograph shows the same jeans and the same shirt on the same day at 7:35 p.m. The photograph shows a "very similar gun, as far as you've got the silver slide, the black gun." The State went on to explain to the court that the detective who would be testifying about the robbery at Logan's would inform the jury that the gun pictured was similar to the one used in the robbery. Based on this explanation, the court found the photograph was "very relevant" and that its prejudicial value did not substantially outweigh the probative value of the evidence.
The court also overruled Appellant's objections to the photograph showing him with the money and flashing the gang sign. The State informed the court it would not reference the gang sign in any way. The court found this photograph was not duplicative of the other photograph showing Appellant with only the cash because one photograph was taken in the morning and one was later. The two photographs were simply "showing that [Appellant] has a bunch of money on two different occasions."
Based on this record, we find the trial court did not abuse its discretion in admitting the photographs into evidence. A detective testified during voir dire examination that the gun in the photograph looked "exactly like the gun on the [Logan's surveillance] video." The detective also noted that "the photo was created the same day as the robbery." The court concluded that the "mere fact that . . . it looks to be the same gun certainly has evidentiary value." From this, the court determined the photographs were admissible. We must agree.
Each photograph was taken the day after the robbery. In each photograph, Appellant's clothing can be seen, and each depicts the distinctive jeans he was wearing. A detective testified that the jeans and shirt were consistent in each of the photographs. The detective testified Appellant was holding a "large amount of cash" in one of the photographs and he stated Appellant's shoes were "similar to the shoes that I saw on the video from the robbery." The detective testified that one of the first things he noticed about the other photograph was that the handgun in the lap "appears to be similar to the handgun from the video surveillance from Logan's." At trial, the detective testified that the police did not recover the gun used in the Logan's robbery; however, he also acknowledged it was not uncommon to not recover such weapons. He opined that the gun used in the robbery and the gun shown in the lap in the photograph were "absolutely" similar. The photographs of Appellant, taken the day after the robbery, holding a large amount of cash, with no explanation of how someone of Appellant's young age could acquire so much cash, and the photograph of a gun that looked similar to the gun used in the robbery sitting on the lap of someone wearing the distinctive jeans Appellant was seen wearing, indicates the highly probative nature of the photographic evidence. Page v. State, 125 S.W.3d 640, 649-50 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd).
We find also that the photographs did not tend to suggest to the jury a decision on an improper basis. Appellant argues the photographs had the potential to impress the jury in an irrational yet indelible way because police did not find the gun used during the robbery and could only say that the gun in the picture looked like the one used at Logan's. Appellant contends the presentation of the photograph "created the implication that [Appellant] had the gun used at Logan's, which was never proved." Because the jury was told police never found the gun used in the robbery and because it heard testimony that the gun shown in the picture was similar, but not positively identified as the gun used in the crime, we find the admission of the photograph did not suggested to the jury a decision on an improper basis. See Page, 125 S.W.3d at 649-50.
Appellant additionally asserts the photograph showing him with cash and flashing a gang sign was "even more inflammatory" because no evidence was presented to show that he was a gang member. Appellant contends the fact that he could be seen flashing such a sign in the photograph could only have a negative connotation and it was unlikely that the jury could forget this image. We disagree. The jury was never informed that the hand gesture in the photograph was any kind of gang sign and there was no mention of a gang affiliation of any kind during the trial. Rather, the State focused on the large amount of money Appellant was holding and how that indicated, in conjunction with other evidence, that Appellant was the person who robbed Logan's restaurant. As such, we find this evidence did not impress the jury in an irrational yet indelible way.
Appellant also makes an argument regarding Rule 404(b). At trial, the court determined Rule 404(b) was inapplicable because the photograph showing Appellant with a gun in his lap was not an extraneous act. Appellant argues it was an extraneous offense or act to which Rule 404(b) applied because the photograph did not show him robbing Logan's restaurant; instead, it showed a minor in possession of a firearm. He argues that having a gun, even one that looks similar to one used in a robbery, does not prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident under Rule 404(b)(2). Therefore, he asserts, the photograph should not have been admitted.
With respect to this argument we note that, generally speaking, posing with a gun is not, in and of itself, an extraneous offense or a bad act. Johnson v. State, No. 07-17-00377-CR, 2019 Tex. App. LEXIS 3590, at *7-8 (Tex. App.—Amarillo May 2, 2019, no pet.) (citing Robinson v. State, 236 S.W.3d 260, 269-70 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd)). However, Appellant is a juvenile so the issue here is not quite that straight-forward. That said, if the pictured gun showed characteristics different from the gun used in the Logan's robbery, we might agree with Appellant that the photograph is evidence of an extraneous act or offense. However, that is not the case. Here, testimony was presented showing the gun in the photograph to be very similar to the gun used in the robbery. Consequently, we cannot agree the photograph depicts an extraneous act or offense to which Rule 404(b) is applicable.
Accordingly, we overrule Appellant's second issue.
CONCLUSION
Having resolved each of Appellant's issues against him, we affirm the judgment of the trial court.
Patrick A. Pirtle
Justice