                                      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



        4
            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.

                                                           3
                                   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).

                                              4
      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



                                           5
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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