TERRY LYNN SHORES,FROM A DISTRICT COURT APPELLANT, v. OF THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00790-CR
TERRY LYNN SHORES,FROM A DISTRICT COURT
 
        APPELLANT,
 
v. OF
 
THE STATE OF TEXAS,
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, LAGARDE AND WHITTINGTON
OPINION PER CURIAM
JUNE 19, 1989
        Terry Lynn Shores was convicted in a jury trial of the offense of aggravated robbery. Punishment, enhanced by two prior convictions, was assessed at life. Appellant raises three points of error claiming that the trial court erred in admitting into evidence: (1) State's Exhibit No. 1, the pistol allegedly used in committing the offense; (2) State's Exhibit No. 4, the magazine and ammunition for the pistol; and (3) State's Exhibit No. 5, the holster for the pistol. We disagree; accordingly, we affirm the judgment of the trial court.
        George Guzman, the complainant, testified that on April 23, 1988, he and two companions were at a store buying beer when two men approached him; he identified appellant as one of the men. Appellant's accomplice asked if Guzman would assist him in jump-starting his truck. Guzman and his companions went with the man to a gas station approximately one-half block from the beer store. Shortly after the complainant arrived, and while the accomplice's truck was being worked on, appellant pulled a .25 caliber handgun, pointed it at Guzman's face, and demanded his money. Guzman identified State's Exhibit No. 1 as the gun in appellant's possession. After Guzman complied with appellant's demand, appellant and his accomplice fled in their truck.
        Paul Michel, a Dallas police officer, testified that on April 23, 1988, he and his partner received a call concerning a theft. When they arrived at the location, Guzman and his companions were there. Guzman took them to a bar nearby where he identified the truck driven by appellant and his accomplice. Appellant and his accomplice exited the vehicle; the driver put his hands up, while appellant made a motion as if he were throwing something away. After appellant and his accomplice were subdued, Officer Michel searched the area around the truck. Approximately ten feet away from where appellant had been standing, he found a pistol (State's Exhibit No. 1) containing a magazine and ammunition (State's Exhibit No. 4) in a holster (State's Exhibit No. 5).
        Demonstrative evidence is admissible at trial if it tends to resolve some issue in the case and is relevant. Simmons v. State, 622 S.W.2d 111, 113 (Tex. Crim. App. 1981). It is well settled that a weapon used in the commission of an offense is admissible. Lopez v. State, 535 S.W.2d 643, 650-651 (Tex. Crim. App. 1976); Wilson v. State, 163 Tex. Crim. 202, 289 S.W.2d 597, 599 (1956). A question raised as to the identification of the exhibit goes to its weight, not its admissibility. Simmons, 622 S.W.2d at 113.
        Appellant argues that there was no evidence connecting him to the gun introduced into evidence. In doing so, appellant points only to the testimony of the arresting officers, one of whom testified only after the exhibits had been admitted. However, the record reflects that prior to admission of the exhibits, the complainant, Guzman, testified that State's Exhibit No. 1 was the gun appellant pointed at him. In addition, when apprehended by police appellant made a motion as if he were throwing something away. In searching the area surrounding the truck, the police found the pistol, ammunition and holster approximately ten feet from appellant. Based on the record, we conclude that Guzman's identification of State's Exhibit No. 1, coupled with the testimony of the arresting officers, was sufficiently positive to authorize its admission.
        In addition, State's Exhibits Nos 4 and 5, being the contents and holster of State's Exhibit No. 1, were positively identified and connected to State's Exhibit No. 1 by the testimony of the arresting officer. As a result, we conclude that the identification of State's Exhibits Nos. 4 and 5 was sufficiently positive to allow their admission into evidence over appellant's objection. Appellant's points of error numbers one, two, and three are overruled.
        The judgment of the trial court is affirmed.
                                                  PER CURIAM
DO NOT PUBLISH
TEX. R. APP. P. 90
 
 
File Date[01-02-89]
File Name[880790]