Opinion
NO. 01-11-00146-CR
03-08-2012
SHAWN DEROYCE SARGEON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1283151
MEMORANDUM OPINION
Shawn Deroyce Sargeon appeals from his conviction for aggravated sexual assault. In a single issue, Sargeon contends that the trial court erred in admitting a Bryco Arms .380 pistol into evidence. We affirm the trial court's judgment.
Background
N.P. was sexually assaulted at gun-point in her parent's home. The next day, Sargeon was arrested a few miles from N.P.'s home on an unrelated matter. He was in possession of a Bryco Arms .380 pistol at the time of his arrest. The State subsequently charged Sargeon with N.P.'s sexual assault and sought to admit the pistol into evidence in the sexual assault trial. Sargeon objected to the admissibility of the pistol on the ground that it constituted an "extraneous offense" under rule 404(b) of the Texas Rules of Evidence. The trial judge initially excluded the pistol but, after a hearing, admitted it into evidence.
At trial, N.P. was unable to identify her attacker because she was forced to wear a pair of shorts over her head during the sexual assault. Evidence linking Sargeon to the assault included DNA evidence, statements made by Sargeon to the police, and phone records and testimony regarding phone calls made on N.P.'s cell phone, which went missing from her bedside table at the time of the assault. The jury convicted Sargeon of aggravated sexual assault and, after answering affirmatively to two enhancement paragraphs based on prior felony offenses, sentenced him to ninety years' confinement.
During the sexual assault, the rapist used a condom and exited the property across the backyard. The DNA admitted at trial was taken from a used condom found discarded in N.P.'s backyard after the assault.
During questioning, Sargeon asked whether the rapist had acquired a condom from the victim. Prior to this question, the officer had not considered Sargeon a suspect. But this question changed the officer's mind because the rapist had, in fact, acquired the condom used in the sexual assault from the victim, but the police had not disclosed that information to the public.
The State introduced into evidence a list of telephone numbers for calls placed on N.P.'s cell phone after it went missing on the night of the assault. The State also introduced an interview in which Sargeon identified most of the phone numbers on the list. The interviewing officer testified that Sargeon was identified as an associate of K. Jones, whose phone number was on the list, in Jones's criminal file. She also testified that Sargeon told her that he had recently obtained a cell phone and used it for a few days before disposing of it, with the time frame consistent with the time frame during which N.P.'s stolen cell phone was used. She testified that Sargeon told her that he had been looking for work and had called an organization called Workforce. One of the phone numbers called from N.P.'s phone after it went missing was to a Workforce office.
Sargeon appeals the trial court's decision to admit the pistol into evidence.
Standard of Review
We review Sargeon's contention that the trial court erred in admitting the pistol into evidence under an abuse of discretion standard. See Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996); Burks v. State, 227 S.W.3d 138, 147 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). We uphold the trial court's admissibility ruling "if it falls 'within the zone of reasonable disagreement.'" Burks, 227 S.W.3d at 147 (quoting Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)). We reverse the trial court's ruling if it is "'so clearly wrong as to lie outside that zone within which reasonable persons might disagree.'" Id. (quoting McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005)).
Admissibility of the Pistol
Under Texas Rule of Evidence 404(b), evidence of extraneous crimes, wrongs, or acts are not admissible "to prove the character of a person in order to show action in conformity therewith" but are admissible to prove other matters, such as "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" if the accused is given reasonable notice of the State's intent to introduce the evidence. TEX. R. EVID. 404(b). Sargeon argues that the pistol "is treated as the admission of an extraneous offense" under rule 404(b) and the trial court should have excluded the pistol under the rule.
Sargeon relies on Cunningham v. State, 500 S.W.2d 820, 824 (Tex. Crim. App. 1973) for his contention that the pistol is subject to, and inadmissible under, rule 404(b)'s extraneous offense test. But this case is distinguishable from Cunningham in two important respects. First, unlike the sawed-off shot gun in Cunningham,Sargeon's "mere possession of a handgun" was not offered to prove a criminal offense or a bad act. Compare id. at 824, with Robinson v. State, 236 S.W.3d 260, 269-70 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (noting that possession of handgun is not, in and of itself, criminal offense or bad act and rejecting argument that .357-caliber handgun and 9-millimeter ammunition found on defendant when arrested in another city several days after crime should have been excluded under rule 404); see also Gonzalez v. State, No. 13-08-00685-CR, 2011 WL 2652162, at *9-10 (Tex. App.—Corpus Christi July 7, 2011, no pet.) (rejecting contention that firearms found in room where defendant was arrested, none of which were connected to crime on trial, were inadmissible under rule 404). Although Sargeon's possession of the pistol was, in fact, illegal because of a prior felony conviction, the State did not introduce evidence of Sargeon's unrelated arrest or that his possession of the pistol was illegal during the guilt-innocence stage of trial.
Sargeon also cites Christopher v. State, 833 S.W.2d 526, 530 (Tex. Crim. App. 1992) for the proposition that the admissibility of the pistol is governed by the extraneous offense test. In Christopher, the Court held that the trial court erred in admitting evidence that the car the accused was driving at the time of his arrest had been stolen earlier in the day in an aggravated robbery. See id. Christopher involved an actual extraneous offense—an aggravated robbery unrelated to the burglary for which the accused was on trial—not possession of a gun. See id.
It is illegal for a person to possess, manufacture, transport, repair or sell a sawed-off shotgun in Texas. See TEX. PENAL CODE ANN. § 46.05(a)(3) (West 2011).
This same distinction can be made with respect to Christopher, which likewise involved evidence relating to an inherently illegal act—an aggravated robbery. See Christopher, 833 S.W.2d at 530.
Second, the sawed-off shot gun admitted into evidence in Cunningham "had no relevance to any issue in the case," which involved a robbery in which no guns were used.Cunningham, 500 S.W.2d at 824. This case, on the other hand, involves an aggravated sexual assault at gun-point, and the pistol admitted into evidence fits within the description of the gun used in the offense. Although N.P. did not see the gun, she felt the gun with her hand. She described the gun as a small, metal handgun "about the size of my hand." After viewing the pistol entered into evidence, N.P. testified that it "look[ed] like it could be the same gun" she felt during the sexual assault, but she could not definitively identify the gun by any special markings. Thus, unlike the gun in Cunningham, the pistol found in Sargeon's possession bears some relation to issues in the case—the jury could consider Sargeon's possession of a pistol fitting the description of the gun used in the assault, on the day after the assault, and within three miles of where the assault occurred, as circumstantial evidence as to whether Sargeon had the opportunity and means to commit the armed assault. See Cunningham, 500 S.W.2d at 824; see also Scott v. State, 165 S.W.3d 27, 52 (Tex. App.—Austin 2005) (holding that testimony of witness who saw accused with gun fitting type of gun used in offense near the time of the offense was relevant and not unfairly prejudicial), rev'd on other grounds, 227 S.W.3d 670 (Tex. Crim. App. 2007); Robinson, 236 S.W.3d 260, 269 (holding that defendant's possession of .357-caliber handgun and 9-millimeter ammunition was relevant to prosecution of crime that witness testified was committed with 9-millimeter and two different types of guns); Gonzalez, 2011 WL 2652162, at *9-10 (holding that firearms, though unrelated to crime on trial, were relevant to show defendant's connection to criminal organization, which was relevant to show motive and intent for murder). Even if the pistol was extraneous offense evidence, it would be admissible for the purpose of showing opportunity or means. See TEX. R. EVID. 404(b).
This same distinction can be made with respect to Christopher, which involved evidence of an aggravated robbery that was not connected to the burglary for which the accused was on trial. See Christopher, 833 S.W.2d at 530.
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Because Sargeon's possession of the pistol does not, in and of itself, constitute a criminal or bad act and the State did not present evidence to establish it as such, we hold that the trial court's admission of the pistol is not governed by rule 404(b)'s prohibition of extraneous offenses. See TEX. R. EVID. 404(b). Additionally, we disagree with Sargeon's contention that the pistol had "no relevance to any issue in the case." The trial court could reasonably have concluded that the pistol was relevant for permissible purposes, such as opportunity or means. See id. We therefore hold that the trial court did not abuse its discretion in admitting the pistol into evidence over Sargeon's objection.
We overrule Sargeon's sole issue.
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown. Do not publish. TEX. R. APP. P. 47.2(b).