Opinion filed March 2 8 , 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 2 6 6 th 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.” S ee T EX

. P ENAL C ODE A NN

. § 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. Appe llant challenges the denial of jail time credit and the admission
of extraneous offense evidence. We affirm.2 I. The Evidence at Trial
Kevin Sowell owned three firearms : a Howa

. 22

- 250 bolt

- action rifle
, a Savage 30.06
rifle
, a nd a Hugo semiautomatic rifle, all of w hich 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 P awn in
San Angelo on December 4, 2010

. He call ed both pawnshops
, placed the guns on hold
, and immediately contacted the Abilene and San Angelo police for help in retrieving the m

. Abilene
Police Detective Jeff Cowan testified that
, after Investigator Woodruff ’s call, he seized the Howa rifle at the pa wnsh o p 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 cl erk at EZ Pawn in Abilene
, testified that on November 23, 2010
, he completed a pawn transaction with Appellant for a “ Sta i Howa ” bolt

- action

. 22

- 250 rifle with
serial number B150754. He identified the transactio n’s pawn documents and also identified Appel lant as the customer by using Appellant’s Texas identification. Likewise, Greg Vaquera,

a ssistant manager at EZ Pawn in San Angelo, testified that on December 4, 2010
, he had completed a pawn transaction for a Savage rifle, M odel 110 bolt

- action 3 0.06 wit h serial number
F720 5 17. 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 apo logized for taking the guns ; Appellant also promis ed to pay for them or return them. Sowell identified3 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 t heft, t heft by c heck, and f amily v iolenc e a ssault. 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 diff erent 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. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.12, § 15(h)(2) (Wes t 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 offen s e evidence under an abuse of discretion standard utilizing Rule 401 (relevance) and Rule 404(b) (adm issibility for “other” purpose) tests. T EX

. R. E VID

. 401, 404(b) ; Montgomery v. State , 810 S.W.2d 372, 390 (Tex. Crim. App. 199 1 ). 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

– 8 7 (Tex. Crim. App. 1991). A trial court abuses its discretion i n admitting or excluding evidence when its decision
lies outside the zone of reason able 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 a lso challenges the trial court’s admis sion
of the extraneous offense of theft and pawn of the Howa rifle.4 A. D enial 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 a n un published opinion in which it is argued that A rticle 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 agr ee 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.
C RIM

. P ROC

. art. 42.12 , § 1 5(h)(2)(A) (emphasis added)

. Article 42.03 provides in part:


### I n all criminal cases the judge of the court in which the defendant i s convicted shall give the defendant credit on the defendant’s s entence for the time that the defendant has spent

. . . in jail for the case . . . from the time of his arrest and confinement until h is sentence by the trial court.
T EX

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. P ROC

. A NN

. art. 42.03 , § 2(a)(1) (West Supp. 2012 )

. Prior decisions have
reviewed this issue and held that the specific statut e, Article 42.12
, prevails over the general statute, Article 42.03, in accordance wi th 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 ha s held
that the decision to allow jail time credit is discretionary

. Holloway , 115 S.W.3d at 798. In the punishment phase, t he trial court heard the evidence presented of Appellant’s prior
convictions and h is various explanation s for them. The trial court also was aware that Appel lant 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 r eason 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
, w here an indigent individual is incarcerated and receives the maximum sentence for the conviction, the trial court is required under equal protection ground s t o credit the5 presentence jail time to avoid the indigent defendant serving more than the maximum penalty allowed by law. Ex p arte Harris , 946 S.W.2d 79, 80 (Tex. Crim. App. 1997) ( citing Caraway v.
State , 550 S.W.2d 699 (Tex. Cr im. 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 indigen t, he did not receive a maximum sentence of confinement for two years

. T he trial court
retained the discretion to decide whether to grant Appellant credit against his sentence for jail time served between arrest and sentencing. C RIM

. P ROC

. 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 non

exhaustive 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 i t admissible as “ ‘ same transaction ’ contextual evidence” or inadmissible because it is

“ ‘ background ’ contextual evidence.” Mayes , 816 S.W.2d at 84

– 8 7. 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. Rel evancy

— Same Transaction Contextual Evidence Appellant claims the Howa rifle theft was “ not relevant,” and the State argue s it was necessary “context” as part of a single theft

. Relevancy refers to whether a fact is made more or6 less likely. Rule 401. Events do not occur in a vacuum
, and the jury has a right to he a r 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 th e 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 subseque nt pawn transaction are relevant to the three missing rifles that Sowell reported to Investigator Woodruff

. Investigator Woodruff completed his investigation after he receiv ed Sowell’ s report of the missing rifles

. Investigator Woodruff
l ocated 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 in admissible 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 admission s of unrelated prior bad act s, 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

– 8 7 ; see Rogers , 853 S.W.2d at 31. Appellant claimed that he got the weapons from Davis , a close friend who w as “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, paw nshop transaction and vide o surveillance records, and pawnshop employees ’ testimony

. The State also introduced Investigator Woodruff ’s testimony about his investigation of the pawn transactions and h is efforts to recover the guns. Sowell testified he had hidden these weapons in his house under his

1 Appellant was admonished about taking the stand and waiving his Fifth Amendment privilege against self

incrimination, but he waived his privilege and testified

.7 bed and had shown Appellant w h ere 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. T he jury
, as the factfinder
, ha d 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 wheth er 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

. The re 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 T EX

. R. A PP

. P. 47.2( b). Panel consists of: Wright, C.J., McCall, J.
, and Willson, J.