William Lincoln Woodall v. The State of Texas--Appeal from 220th District Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-96-157-CR

WILLIAM LINCOLN WOODALL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court # 96-01-11903 BCCR

O P I N I O N

A jury convicted William Lincoln Woodall of possession of a firearm by a felon and sentenced him to seven years in prison. See Tex. Penal Code Ann. 46.04 (Vernon 1994). Woodall appeals this conviction arguing that the State violated Rule 404(b) s notice requirement when it failed to notify him that it planned to introduce testimony of his prior possession of a firearm. We will affirm.

On January 5, 1996, Michael Harcourt, accompanied by Woodall, was driving to Reed Ranch when police stopped them for a routine traffic violation. When one of the officers, David Booker, walked up to the vehicle, he noticed two rifle cases in the back of the truck. He asked Harcourt and Woodall where they were going, and they responded that they were going hunting. Woodall told Officer Booker that one of the rifles belong to him. During this exchange, Booker smelled marijuana and discovered Woodall in possession of the substance. After arresting him for possession of marijuana, Officer Booker ran a check on Woodall and found that he was a convicted felon. Thus, Woodall was also charged with unlawful possession of a firearm by a felon.

In his sole point of error, Woodall complains that the court improperly admitted testimony concerning his prior possession of the rifle. He asserts that this testimony concerns extraneous-offense evidence and the court should have excluded it because the State failed to give him proper notice of its intent to introduce the testimony as Rule 404(b) requires.

We will not disturb a trial court s decision to admit or exclude evidence absent an abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Saenz v. State, 843 S.W.2d 24, 26 (Tex. Crim. App. 1990); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). Thus, if a ruling is within the zone of reasonable disagreement, we will not reverse. Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391.

After reviewing the record, we conclude that the trial court did not abuse its discretion in admitting the testimony concerning Woodall s prior conduct related to the rifle. The record shows that the State presented evidence that Woodall owned one of the rifles discovered by the police when they arrested him. The State called Billy Evans to testify on its behalf. Woodall objected, contending that Evans planned to testify about an extraneous offense and that the State failed to notify him about this testimony. The State, however, argued that Evans testimony was not about an extraneous offense because it was evidence of ownership, not possession. Admonishing the State to question Evans only about ownership, the court allowed him to testify. After identifying the rifle as the one that he had seen earlier at a deer camp where Woodall was hunting, Evans testified that when he asked about the rifle, Woodall admitted that he owned it.

[Prosecutor]: Okay. Now, on that occasion did Mr. William Lincoln Woodall

make a statement to you as to the ownership of that gun?

[Evans]: Yes, sir.

[Prosecutor]: Who did he say was the owner?

[Evans]: It s his gun.

[Prosecutor]: It was the Defendant s gun?

[Evans]: Yes, sir.

To constitute evidence of an extraneous offense, the evidence must demonstrate that an offense or bad act was committed and that the defendant committed or was connected to that offense or bad act. Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992); Laca v. State, 893 S.W.2d 171, 186 (Tex. App. El Paso 1995, pet. ref d); Martin v. State, 823 S.W.2d 726, 729 (Tex. App. Waco 1992, pet. ref d). Arguing that this evidence is not about an extraneous offense, the State draws a distinction between possession and ownership. It asserts that although section 46.04 prohibits the possession of a firearm by a convicted felon, it does not outlaw ownership of one. See Tex. Penal Code Ann. 46.04(a). We agree. The Penal Code defines possession as actual care, custody, control, or management. Id. 1.07(39) (Vernon 1994). Owner means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Id. 1.07(35)(A). According to these definitions, it is possible for a person to have title to a gun without having actual care, custody, control, or management of it.

Here, the State elicited only about whether Woodall owned the gun, not whether he had actual care, control, custody, or management. We conclude that the court properly excluded testimony of Woodall s actual care, control, custody, or management of the gun and acted within its discretion in concluding that Evans testimony concerning ownership did not constitute evidence of the extraneous offense of possession of a firearm. Moreover, although Evans did eventually testify to Woodall s possession of the rifle, Woodall elicited this testimony, not the State.

[Defense]: You never saw [Woodall] here have the weapon, did you?

[Evans]: I seen it in his hands, yes, sir.

Evan s testimony did not become extraneous-offense evidence until Woodall asked a question about possession. Thus, as the court noted, I don t think you can throw the skunk in the box, then complain about it.

Woodall s point is overruled, and the judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed March 19, 1997

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