# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION
N o. 04

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v. The STATE of Texas, Appellee From the 187th Judicial District Court , Bexar County, Texas Trial Court No. 2018CR6053 Honorable Stephanie R. Boyd , Judge Presiding Opinion by: Rebeca C. Martinez, Chief Justice Sitting: Rebeca C. Martinez, Chief Justice Irene Rios , Justice Lori I. Val enzuela, Justice 1
Delivered and Filed: April 20, 2022
AFFIRMED A jury convicted Kedreen Marque Pugh of possession of a controlled substance with intent to deliver. We reversed the conviction after sustaining appellant’s first issue challenging the trial court’s denial of his motion to suppress. The Court of Criminal Appeals reversed our judgment and remanded the case for consideration of appellant’s second issue, which we did not previously

1 This case was originally submitted on briefs before a panel consisting of Chief Justice Sandee Bryan Marion, Justice Martinez, and Justice Rios. Chief Justice Martinez has now assumed Chief Justice Marion’s place and replaces her on remand in accordance with Rule 8(j)(iii) of our Internal Operating Procedures. Likewise, Justice Valenzuela has now assumed Justice Martinez’s place and replaces her on remand.04

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. See Pugh v. State , 624 S.W.3d 565 (Tex. Crim. App. 2021)

. By his second issue, appellant challenges the admission of evidence of a firearm over his objection that the prejudicial effect of the evidence outweighed its probative value. We overrule appellant’s second issue and affirm the trial court’s judgment.
B ACKGROUND Police officers pulled appellant over while he was driving and arrested him on an outstanding warrant . Appellant was p laced i n the back of a patrol vehicle , and Officer Johnny Lopez drove appellant to police headquarters . Mean while , Detective Joe Rios drove the car that appellant had driven to a gas station for appellant’s wife to pic k up. Detective Rios testified he had no intention of search ing appellant’s vehicle and did not initially search the vehicle. W hile on
route to police headquarters, appellant told Officer Lopez that he had “stuff” in the car

. Officer Lopez asked a ppellant to specify, and appellant responded that he had drugs and a small handgun in the car

. Acting on appellant’s statement, Detective Rios searched the vehicle and found shopping bags on the passenger seat and floorboard. The bags contained a loaded handgun, a mason jar containing heroin and cocaine , small jewelry bags, Ziplock bags, and a razor blade. Appellant was charged with possession of heroin with intent to deliver in an amount greater than four grams but less than 200 grams

. The t rial court d enied appellant’s pre - trial motion to suppress his statement that he had drugs and a small handgun in the car

. At trial, a rec ording of appellant’s statement was admitted. T he State also sought to admit evidence of the handgun and cocaine found in appell ant’s vehicle

. Appellant objected on the bas is that the evidence was more prejudicial than probative

. The trial court sustained the objection as to evidence of the cocaine but overruled the objection a s to evidence of the handgun . Consequently, the hand gun, testimony about the officers’ recovery of the handgun, and several pictures of the handgun were admitted into evidence. The jury found appellant guilty.04

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- By his second issue, appellant challenges the admission of evidence of the handgun found in the c ar on the ground that the prejudicial value of the evidence outweighed it s probative value.
S TANDARD OF R EVIEW AND A PPLICABLE L AW “[ A]s an appellate court, we review the trial court ’s decision to admit or exclude evidence under an abuse of discretion standard

. ” Jackson v. State , 562 S.W.3d 717, 72 2 (Tex. App.

— Amarillo 2018 , no pet. ) (citing Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) )

. “So long as the trial court thus operates within the boundaries of its discretion, an appellate court should not disturb its decision, whatever it may be.” Johnigan v. State , 69 S.W.3d 749, 755 (Tex. App.

— Tyler 2002 , pet. ref’d ) (cit ation omitted). We will reverse a trial court’s evidentiary ruling only if it lies outside of the zone of reasonable disagreement. Id

. Rule 403 of the Texas Rules of Evidence provides that a trial court “ may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence .” T EX
. R. E VID
. 403. Rule 403 “favors the admission of relevant evidence, and such is presumed to be more probative than prejudicial .” Shuffield v. State , 189
S. W.3d 782, 787 (Tex. Crim. App. 2006 ) (citation omitted)

. When determining whether evidence is admissible or should be excluded under Rule 403, a trial court balance s , but is not limited to , four factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent ’ s need for the evidence. State v. Mechler , 153 S.W.3d 43 5, 440 (Tex. Crim. App. 2005). Rule 403 does not require this balancing test to be performed on the record

. Distefano v. State , 532 S.W.3d 25, 31 (Tex. App.

— Hous ton [1 4th Dist.] 2016 , pet. ref’d ).04

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- D ISCUSSION We hold the trial court did not abuse its disc retion by admitting evidence of the handgun. The first balancing factor under Rule 403 is the probativeness of the evidence. Mechler , 153 S.W.3d at 440 . P robativeness refers to “how compellingly the evidence serves to make a fact of
consequence more or less probable.” Id. Here, the indictment charged appellant with possession of heroin “with intent to deliver.” Due to the nature of the allegation, the State had the burden of provi ng the specific intent of appellant

. See Puente v. State , 888 S.W.2d 521, 527 (Tex. App.

— San Antonio 1994, no pet.) . E vidence of the hand gun wa s probative to show appellant’s “ intent to deliver ” heroin in a way that evidence of cocaine was not, and n umerous courts have drawn the connection between firearms and the d rug trade. See, e.g. , Plummer v. State , 410 S.W.3d 855, 859 (Tex. Crim. App. 2013) ( “[D] rug dealers frequently use guns to protect themselves and their merchandise. ”); Carmouche v. State , 10 S.W.3d 323, 330 (Tex. Crim. App. 2000) (noting weapons are frequ ently associated with drug transactions); Hill v. State , 913 S.W.2d 581, 593 (Tex. Crim. App. 1996) (“[Firearms] are commonly used in the drug trade to protect the contraband.” ); United
States. v. Bonner , 874 F.2d 822, 824 ( D.C. Cir. 1989) (“As common sense, and bitter experience, would suggest, the law has ‘ uniformly

. . . recognized that substantial dealers in narcotics possess firearms and that such weapons are as much tools of the trade as more commonly recognized drug paraphernali a. ’ ”) (quotation s omitted ) ; see also Pugh , 624 S.W.3d at 569 (discussing loaded handgun and other paraphernalia suggesting appellant was dealer of heroin). The second factor looks to whether the evidence ha d the potential to impress the jury in some irrat ional but indelible way. Mechler , 153 S.W.3d at 440 . Rule 403 does not exclude all prejudicial evidence, rather, it focuses on the danger of unfair prejudice. Id. E vidence of the handgun is prejudicial but is not unfairly prejudicial because the eviden ce directly relates to the charged offense , which require d intent to deliver

. See id. ( “ ‘U nfair prejudice ’ refers only to04

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- relevant evidence ’ s tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged. ”)

. The third factor looks to the time needed to develop the evidence, during which the jury may be distracted from consid ering the indicted offense. Id. at 441. E vidence of the hand gun was probative of appellant’s intent to deliver , as alleged in the indictment , and could not have distracted the jury

. Se e id. (“ Because the intoxilyzer results relate directly to the charged offense, a jury could not be distracted away from the charged offense regardless of the required time to present the results. ”)

. The last fa ctor focuses on the proponent ’ s need for th e evidence to prove a fact of
consequence
. Manning v. State , 114 S.W.3d 922, 928 (Tex. Crim. App. 2003)

. Here, the State used evidence of the handgun to establish appellant’s intent to deliver a controlled subst ance. E vidence of the hand gun was cumulative of other paraphernalia suggesting appellant was a drug dealer

. S ee Pugh , 624 S.W.3d at 569 . T herefore, t he fourth factor weigh s against admissibility. Nevertheless, w e hold the sum of all four factors supports the trial court’s decision to admit the evidence. See Mechler , 153 S.W.3d at 441

– 42 (holding s um of factors weighed in favor of admissibility, although State did not have a great need for challenged evidence).
C ONCLUSION The judgment of the trial court is affirmed. Rebeca C. Martinez, Chief Justice
DO NOT PUBLISH