                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00235-CR


CALVIN DEWAYNE OVERSTREET                                         APPELLANT

                                       V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1332802D

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                        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


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       See Tex. R. App. P. 47.4.
Grand Prairie police officer, arrived at the QuikTrip and saw a car parked in a

handicap parking space at “about a 45-degree angle.” He saw Appellant inside

the store talking on his cellphone very animatedly and waving his hand around

above his head.

      After speaking with Appellant and another officer, Dell became concerned

for his own safety. He asked Appellant to raise his hands so Dell could perform a

pat down. When Appellant did, a bag of white powder, which Dell believed to be

cocaine, fell out of Appellant’s hands

      Police officers searched Appellant’s car and saw a handgun lying on the

front passenger seat. They also found two crowbars, some jackets and gloves,

and a backpack containing duct tape, a hammer, and several rolls of coins.

Appellant told an officer that the cocaine was his but that the gun belonged to a

girl who had been in the car earlier. However, at trial, Alexis Gilbert testified that

he had been in Appellant’s car that evening. Appellant had picked Gilbert up in

south Dallas and had given him a ride that lasted five or ten minutes. Gilbert,

who is paralyzed from the waist down, testified that that the gun was on his hip

and he did not realize it had fallen out when he had gotten out of the car.

      A jury found Appellant guilty of unlawful possession of a firearm. At the

punishment trial, Appellant pleaded true to the habitual offender notice. The

State introduced photos of Appellant’s tattoos, which a police officer identified as

gang-related. The State also introduced photographs of a store that had been

damaged during a robbery in June 2013, DNA evidence connecting Appellant to


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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


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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


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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


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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


      2
        Specifically, Appellant’s argument that the State did not lay the proper
predicate for the gun and the cocaine is not preserved. Appellant also argues
that the trial court did not conduct the balancing test under rule 403. However, in
the admission of both pieces of evidence, the trial court specifically stated on the
record that it had performed the balancing test. Rule 403 does not require that
the trial court perform the balancing test on the record. Sanders v. State,
255 S.W.3d 754, 760 (Tex. App.—Fort Worth 2008, pet. ref’d).


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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




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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.


      3
       Again, Appellant’s argument that the State did not lay the proper predicate
is waived. We also overrule Appellant’s argument that the trial court did not
conduct the balancing test under rule 403. See Sanders, 255 S.W.3d at 760.


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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.




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                                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




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