Opinion filed March 28, 2013

In The

Eleventh Court of Appeals __________

No. 11-12-00152-CR

__________

CASEY BRENT SUTTERFIELD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 266th District Court

Erath County, Texas

Trial Court Cause No. CR13558

M E M O R A N D U M O P I N I O N

The grand jury returned an indictment alleging that Casey Brent Sutterfield, Appellant,

“did then and there unlawfully appropriate, by acquiring or otherwise exercising control over,

property, to-wit: a firearm being a Savage 30.06 caliber rifle, from Kevin Sowell, the owner 

thereof, without the effective consent of the owner, and with intent to deprive the owner of the 

property.” See TEX. PENAL CODE ANN. § 31.03(a), (b)(1), (e)(4)(C) (West Supp. 2012). The jury 

convicted Appellant of that offense, a state jail felony, and assessed his punishment at 

confinement for one year. Appellant challenges the denial of jail time credit and the admission 

of extraneous offense evidence. We affirm.
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I. The Evidence at Trial

Kevin Sowell owned three firearms: a Howa .22-250 bolt-action rifle, a Savage 30.06 

rifle, and a Hugo semiautomatic rifle, all of which he kept hidden under his bed at his Erath 

County residence. Sowell met Appellant while working at FMC. Sowell allowed Appellant to 

move into his home in September 2010, and later, he showed Appellant his guns and their hiding 

place. Appellant moved out a few months later. Shortly after Appellant moved out, Sowell 

discovered that a number of items, including his three rifles, were missing. He filed a theft 

report with Erath County Sheriff’s Investigator Jeremy Woodruff and gave him the serial 

numbers for two of the missing rifles.

Investigator Woodruff used “LeadsOnline” and discovered that Appellant had pawned 

the Howa rifle on November 23, 2010, in Abilene and the Savage rifle at EZ Pawn in 

San Angelo on December 4, 2010. He called both pawnshops, placed the guns on hold, and 

immediately contacted the Abilene and San Angelo police for help in retrieving them. Abilene 

Police Detective Jeff Cowan testified that, after Investigator Woodruff’s call, he seized the Howa 

rifle at the pawnshop and sent it to him. San Angelo Police Detective Rick Keeling testified that 

he did the same in seizing and returning the Savage rifle that was located at the San Angelo 

pawnshop. Investigator Woodruff received the Howa and Savage rifles and confirmed that they 

belonged to Sowell.

Investigator Woodruff checked with the Texas Department of Public Safety, and its 

records confirmed that the identifiers used in both pawn transactions matched Appellant. Joe 

Michael Martinez, a clerk at EZ Pawn in Abilene, testified that on November 23, 2010, he 

completed a pawn transaction with Appellant for a “Stai Howa” bolt-action .22-250 rifle with 

serial number B150754. He identified the transaction’s pawn documents and also identified

Appellant as the customer by using Appellant’s Texas identification. Likewise, Greg Vaquera, 

assistant manager at EZ Pawn in San Angelo, testified that on December 4, 2010, he had 

completed a pawn transaction for a Savage rifle, Model 110 bolt-action 30.06 with serial number 

F720517. He identified the pawn ticket for the transaction and identified Appellant as the pawn 

customer by his signature and Texas identification information.

Sowell also testified that Appellant had sent him text messages in which he apologized 

for taking the guns; Appellant also promised to pay for them or return them. Sowell identified 
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photos of the text messages that Appellant had sent him, and he later read them to the jury. 

Investigator Woodruff testified that Appellant admitted to him that he had pawned both guns.

Appellant testified in his own defense. He accused Sowell of operating a meth lab in his 

home as the reason why he had moved out. Appellant claimed he pawned the guns at Justin 

Davis’s request. Appellant claimed not to know the whereabouts of Davis. Appellant was 

impeached by evidence of prior convictions for theft, theft by check, and family violence assault. 

Appellant also admitted owing Sowell rent money and sending text messages to Sowell, but he 

claimed that the messages only related to the rent money he owed Sowell.

II. Issues on Appeal

Appellant has asserted that the trial court (1) erred in denying his request for jail time 

credit and (2) erred in admitting evidence of a different offense that took place three weeks prior 

to the indicted offense.

III. Standard of Review

We review Appellant’s first issue under an abuse of discretion standard because the trial 

court has the discretion to decide whether to grant a defendant credit against his sentence for jail 

time served between arrest and sentencing. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 15(h)(2) 

(West Supp. 2012); Holloway v. State, 115 S.W.3d 797, 798 (Tex. App.—Austin 2003, no pet.).

We also review the trial court’s decision to admit extraneous offense evidence under an 

abuse of discretion standard utilizing Rule 401 (relevance) and Rule 404(b) (admissibility for 

“other” purpose) tests. TEX. R. EVID. 401, 404(b); Montgomery v. State, 810 S.W.2d 372, 390 

(Tex. Crim. App. 1991). We will utilize a two part test focusing on (1) relevance and (2) 

whether the evidence is admissible “‘same transaction’ contextual evidence” or inadmissible 

“‘background’ contextual evidence.” Mayes v. Sate, 816 S.W.2d 79, 84–87 (Tex. Crim. App. 

1991). A trial court abuses its discretion in admitting or excluding evidence when its decision 

lies outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101–02 (Tex. 

Crim. App. 1996).

IV. Discussion and Analysis

Appellant challenges the trial court’s denial of his request for credit for time already 

served from the time of arrest through sentencing. He also challenges the trial court’s admission 

of the extraneous offense of theft and pawn of the Howa rifle.
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A. Denial of Jail Time Credit

Appellant argues that he should have been given credit for his jail time served prior to 

sentencing. Appellant argues that Article 42.03 of the Texas Code of Criminal Procedure 

prevails over Article 42.12, section 15(h)(2) because the latter deals with community 

supervision. Appellant offers as support a concurrence in an unpublished opinion in which it is 

argued that Article 42.03 should be mandatory. See In re Craven, No. 2-09-243-CV, 2009 WL 

3823192 (Tex. App.—Fort Worth Nov. 13, 2009, orig. proceeding). We do not agree with 

Appellant’s contention.

Article 42.12 provides in part:

A judge . . . may credit against any time a defendant is required to 

serve in a state jail felony facility time served by the defendant in a county 

jail from the time of the defendant’s arrest and confinement until 

sentencing by the trial court.

CRIM. PROC. art. 42.12, § 15(h)(2)(A) (emphasis added). Article 42.03 provides in part:

In all criminal cases the judge of the court in which the defendant is 

convicted shall give the defendant credit on the defendant’s sentence for the 

time that the defendant has spent . . . in jail for the case . . . from the time of 

his arrest and confinement until his sentence by the trial court.

TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a)(1) (West Supp. 2012 ). Prior decisions have 

reviewed this issue and held that the specific statute, Article 42.12, prevails over the general 

statute, Article 42.03, in accordance with the Code Construction Act. Hoitt v. State, 30 S.W.3d 

670, 676 (Tex. App.—Texarkana 2000, pet. ref’d). The Austin Court of Appeals also has held

that the decision to allow jail time credit is discretionary. Holloway, 115 S.W.3d at 798.

In the punishment phase, the trial court heard the evidence presented of Appellant’s prior 

convictions and his various explanations for them. The trial court also was aware that Appellant 

had failed to appear for his first two trial dates, had forfeited his bail bond, and was arrested on a 

bench warrant issued for his failure to appear. The trial court heard all the evidence at trial, both 

at the guilt/innocence phase and the punishment phase; knew that the jury’s verdict was one year 

with no probation; and did not provide a reason for denying jail credit. We hold under these 

facts that the trial court did not abuse its discretion in denying Appellant jail credit for the time

(approximately six months) that Appellant was incarcerated prior to sentencing.

We do note that, where an indigent individual is incarcerated and receives the maximum 

sentence for the conviction, the trial court is required under equal protection grounds to credit the 
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presentence jail time to avoid the indigent defendant serving more than the maximum penalty 

allowed by law. Ex parte Harris, 946 S.W.2d 79, 80 (Tex. Crim. App. 1997) (citing Caraway v. 

State, 550 S.W.2d 699 (Tex. Crim. App. 1977), and Ex parte Chamberlain, 586 S.W.2d 547 

(Tex. Crim. App. 1979), which both cite Williams v. Illinois, 399 U.S. 235 (1970), and Hart v. 

Henderson, 449 F.2d 183 (5th Cir. 1971)).

We also note that, although Appellant had appointed counsel and may have been 

indigent, he did not receive a maximum sentence of confinement for two years. The trial court 

retained the discretion to decide whether to grant Appellant credit against his sentence for jail 

time served between arrest and sentencing. CRIM. PROC. art. 42.12, § 15(h)(2); Holloway, 115 

S.W.3d at 798; Hoitt, 30 S.W.3d at 676. Appellant’s first issue is overruled.

B. Admission of Extraneous Offense Evidence

Appellant next argues that the trial court’s admission of the theft and pawn of the Howa 

rifle in his trial for theft of the Savage rifle was erroneous and led to his wrongful conviction. A 

party may not adduce evidence of “other crimes, wrongs, or acts” to prove character of a person 

in order to show he acted in conformity therewith. Rule 404(b). But admission of “other crimes, 

wrongs, or acts” may be admissible if “relevant” and advanced for “another purpose.” Rule

404(b); Montgomery, 810 S.W.2d at 387–88. Those purposes may include the following nonexhaustive list: proof of intent, motive, opportunity, preparation, plan, knowledge, or identity or 

may rebut a defensive theory such as lack of mistake or accident. Rule 404(b); Montgomery, 810 

S.W.2d at 387–88.

The review centers on whether the “background” evidence is relevant and, if so, is it 

admissible as “‘same transaction’ contextual evidence” or inadmissible because it is 

“‘background’ contextual evidence.” Mayes, 816 S.W.2d at 84–87. This evidence was formerly 

called “res gestae” of the offense. Id. at 86. “Same-transaction contextual evidence results when 

an extraneous matter is so intertwined with the State’s proof of the charged crime that avoiding 

reference to it would make the State’s case incomplete or difficult to understand.” Prible v. 

State, 175 S.W.3d 724, 732 (Tex. Crim. App. 2005) (citing Rogers v. State, 853 S.W.2d 29, 33 

(Tex. Crim. App. 1993)).

1. Relevancy—Same Transaction Contextual Evidence

Appellant claims the Howa rifle theft was “not relevant,” and the State argues it was 

necessary “context” as part of a single theft. Relevancy refers to whether a fact is made more or 
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less likely. Rule 401. Events do not occur in a vacuum, and the jury has a right to hear what 

occurred immediately prior to and subsequent to the commission of an offense in order that it

may realistically evaluate the evidence. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. 

App. 2000). Evidence that imparts to the factfinder information essential to understanding the

context and circumstances of an event is admissible to illuminate the nature of the alleged crime, 

even though it may include legally separate offenses that are nonetheless blended or interwoven. 

Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993) (citing Mayes, 816 S.W.2d at 

86).

The Howa rifle theft and subsequent pawn transaction are relevant to the three missing 

rifles that Sowell reported to Investigator Woodruff. Investigator Woodruff completed his

investigation after he received Sowell’s report of the missing rifles. Investigator Woodruff

located both rifles, secured and retrieved them, returned them to Sowell, and identified Appellant 

as the person who pawned them. The theft of the rifles was “part and parcel” of one transaction 

by Appellant whose own statements and text messages confirmed the theft.1 The Howa rifle 

evidence is relevant evidence to the single theft transaction at Sowell’s residence. Our inquiry 

now turns to whether such evidence is rendered inadmissible by Rule 404(b).

2. Rule 404(b)—Same Transaction Contextual Evidence

Appellant claims that the Howa .22-250 rifle theft and pawn were erroneous admissions

of unrelated prior bad acts, which were inadmissible because he was only charged with theft of 

the Savage rifle. The trial court may allow evidence of another offense that is not part of the 

indictment to show the “background” or “context” of the indicted offense as part of a continuing 

criminal episode. Mayes, 816 S.W.2d at 84–87; see Rogers, 853 S.W.2d at 31. Appellant 

claimed that he got the weapons from Davis, a close friend who was “like a brother,” and that he 

was unaware that they were stolen. But Investigator Woodruff testified that Appellant told him

that he got the rifles from Sowell, not Davis.

The State introduced evidence of the pawn tickets, pawnshop transaction and video 

surveillance records, and pawnshop employees’ testimony. The State also introduced 

Investigator Woodruff’s testimony about his investigation of the pawn transactions and his 

efforts to recover the guns. Sowell testified he had hidden these weapons in his house under his 

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Appellant was admonished about taking the stand and waiving his Fifth Amendment privilege against selfincrimination, but he waived his privilege and testified.
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bed and had shown Appellant where they were. Appellant’s theft of the two rifles was a “single” 

act to deprive Sowell of his property. All of this evidence provides the same transaction context 

for the single theft of the rifles. The trial court did not err in admitting the evidence of the Howa 

rifle theft and pawn transaction related to it.

But even were we to hold that the admission of the Howa rifle evidence was erroneous, 

which we do not, the error was harmless. The jury, as the factfinder, had the responsibility to 

weigh the evidence and decide whether Appellant was telling the truth about the pawn 

transactions as well as his explanation for his statements and text messages or whether the 

testimony of Investigator Woodruff, Martinez, Vaquera, and Sowell was more credible. Pawn 

transaction records, video surveillance, DPS records, and eyewitness testimony place Appellant

at the San Angelo pawnshop pawning the Savage rifle. Appellant also admitted he was there and 

pawned the Savage rifle. There was sufficient evidence to convict Appellant of the theft of the 

Savage rifle without the Howa rifle evidence. Appellant’s second issue is overruled.

V. This Court’s Ruling

We affirm the trial court’s judgment.

MIKE WILLSON

JUSTICE

March 28, 2013

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.