MEMORANDUM OPINION 1

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Appellant Calvin Dewayne Overstreet appeals his conviction and forty-year sentence for unlawful possession of a firearm. We affirm.

Background Facts

On June 11, 2014, Appellant called 911, claiming that he was being followed. Appellant parked at a QuikTrip gas station. Officer Hunter Dell, a the robbery, and photos of and stills from a surveillance video camera of a convenience store showing Appellant burglarizing the store. The jury assessed punishment at forty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court sentenced Appellant accordingly.

Discussion

1. Sufficiency of the evidence

In his first point, Appellant argues that the evidence is legally insufficient to support the jury’s finding that he knowingly possessed the pistol found in his car. In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).

To establish the offense of unlawful possession of a firearm by a felon, the State must show that the defendant was previously convicted of a felony offense and possessed a firearm after the conviction and before the fifth anniversary of the person’s release from confinement. Tex. Penal Code Ann. § 46.04(a)(1) (West 2011). Appellant does not dispute that he had a prior felony conviction; he challenges only the evidence that he possessed a firearm.

The penal code defines possession as “actual care, custody, control, or management.” Id. § 1.07(a)(39) (West Supp. 2014). A person commits a possession offense only if he voluntarily possesses the prohibited item. Id. § 6.01(a) (West 2011). Possession is voluntary if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. Id. § 6.01(b).

Officer Dell testified that after he handcuffed Appellant and put him in his patrol car, he looked inside the passenger-side window and saw the gun in the front seat in plain sight. Arlington police officer Edward Chappell also testified that when he arrived to the scene, the gun was visible in the passenger seat “just looking in the car.” Chappell said that when he was taking Appellant to jail, he informed Appellant that he was being charged with possession of a controlled substance and felon in possession of a firearm. Appellant said, “I’ll take the cocaine, but the gun’s not mine. It belonged to a girl that was in my car who I dropped off and who got out of the car in Dallas because she was freaking out.”

The evidence was that the gun was in plain view and within reach of the driver’s seat in Appellant’s car, which he had been driving. See Bates v. State, 155 S.W.3d 212, 216–17 (Tex. App.—Dallas 2004, no pet.) (considering evidence that the contraband was in plain view, that defendant was the owner of the car in which the contraband was found, that the defendant was the driver of the car in which the contraband was found, and that defendant was in close proximity and had ready access to the contraband in determining whether defendant was “conscious of his connection” with the weapon). Appellant also indicated to Chappell that he knew the gun was in his car. See id. (considering affirmative statements connecting defendant to the contraband, including incriminating statements made by defendant when arrested). Although there was evidence that Appellant’s friend Gilbert owned the gun and had accidentally left it in Appellant’s car, the jury was free to believe that in the time between dropping Gilbert off in south Dallas and stopping at the gas station in Arlington, Appellant became aware of the gun in his car and chose not to terminate his control over it. See Tex. Penal Code Ann. § 6.01(b). The evidence was therefore sufficient to support the jury’s finding of guilt. We overrule Appellant’s first point.

2. Evidence admitted during the guilt/innocence phase

In his second and third points, Appellant argues that the trial court abused its discretion by admitting prejudicial evidence. In his second point, he complains of the admittance of the firearm recovered from his car. In his third point, he complains of the admittance of the bag of cocaine that had fallen from his person. An appellate court reviews a trial court’s decision to admit evidence for an abuse of discretion. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). A trial court abuses its discretion in admitting evidence if that decision falls outside the wide zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).

An objection preserves only the specific ground cited. Tex. R. App. P. 33.1(a)(1)(A); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999); Bell v. State, 938 S.W.2d 35,

54 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997). At trial, Appellant objected to the admission of the firearm and cocaine only under rule 403. Thus, any other objection that Appellant presents on appeal has been forfeited. ^[2] See Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A complaint will not be preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial.”).

Evidence may be excluded under Texas Rule of Evidence 403 if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. But this rule also favors the admission of relevant evidence, and such evidence is presumed to be more probative than prejudicial. See Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006), cert. denied, 549 U.S. 1056 (2006). In a rule 403 analysis, a trial court must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. See Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

The firearm was relevant to determining Appellant’s guilt. Seeing the actual gun aided the jurors in determining whether, considering its size and color for example, Appellant would have noticed the gun lying in the passenger seat. To that end, the gun was more probative than prejudicial. The trial court did not err by admitting the firearm. The cocaine helped explain Appellant’s erratic behavior at the gas station and why he would have called 911 while leaving a gun in plain view in his vehicle. We therefore cannot say that the trial court abused its discretion by allowing the cocaine into evidence. We overrule Appellant’s second and third issues.

3. Evidence admitted at the punishment phase

In his fourth through eighth points, Appellant argues that the trial court abused its discretion by admitting prejudicial evidence during the punishment phase of the trial. Specifically, he complains of the admission of pictures of his tattoos, photographs of two burglaries that he had committed, DNA evidence linking him to one of the burglaries, and surveillance photographs of one of the burglaries. At trial, the only objections to the evidence that Appellant made were under rule 403, except for the tattoo photographs, which he also objected to on relevancy grounds. Thus, any other argument Appellant makes on appeal regarding the admission of this evidence has been forfeited. ^[3] See Lovill, 319 S.W.3d at 691–92.

During the punishment phase, “evidence may be offered . . . as to any matter the court deems relevant,” including evidence of the defendant’s reputation or character. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2014). Relevance in this context consists of what would be helpful to the jury in determining the appropriate punishment. Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000); see Tex. R. Evid. 401 (defining relevant evidence as evidence having any tendency to make existence of fact that is of consequence to determination of action more probable or less probable than it would be without evidence); Garcia v. State, 239 S.W.3d 862, 865 (Tex. App.— Houston [1st Dist.] 2007, pet. ref’d).

The State offered twenty-four photographs of Appellant’s tattoos. Appellant objected on relevancy grounds and under rule 403. See Tex. R. Evid. 401, 403. The trial court sustained Appellant’s objections to all of the photographs except two, which depicted gang tattoos.

As a general matter, testimony regarding a defendant’s affiliation with a gang may be relevant and admissible at the punishment phase to show the defendant’s character. Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App.

1995). A police officer in the gang intelligence section identified Appellant’s tattoos as commonly associated with the Bloods. See Garcia, 239 S.W.3d at 867 (holding that evidence of gang tattoos “supplied sound evidence of Garcia’s gang membership”). The photographs were therefore not irrelevant or unfairly prejudicial. The trial court did not abuse its discretion by admitting them. We overrule Appellant’s fourth point.

As to the photographs and DNA evidence from a burglary of a Family Dollar and the photographs of the burglary of a convenience store, we note that “a wide scope of evidence of any ‘bad acts’ is allowed at the punishment phase.” Sierra v. State, 266 S.W.3d 72, 79 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (citing Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1)). Prior crimes or bad acts provide additional information which the jury may use to determine the defendant’s sentence. Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999). The photographs and DNA evidence allowed the jury to link Appellant to past bad acts and then determine the appropriate sentence. The trial court therefore did not abuse its discretion by admitting the evidence. We overrule Appellant’s fifth through eighth points.

Conclusion

Having overruled Appellant’s eight points, we affirm the trial court’s judgment.

/s/ Lee Gabriel LEE GABRIEL JUSTICE PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: May 14, 2015