David Chance Starr v. the State of Texas

NO. 12-22-00229-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVID CHANCE STARR, § APPEAL FROM THE 241ST
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Appellant, David Chance Starr, appeals from his conviction and sentence for possession
of a controlled substance. In two issues, Appellant challenges the sufficiency of the evidence to
support his conviction and the admission of evidence on gang membership at the punishment
phase. We affirm.

BACKGROUND
On March 23, 2021, Deputy Corey Cameron of the Smith County Sheriff’s Office went
to a house on Holiday Hills Road in Smith County, Texas, with the intent of arresting Appellant
on an outstanding arrest warrant.1 Cameron entered the residence with permission of the
homeowner, Patricia Venegas, called out Appellant’s name, and located him in the doorway of a
back bedroom. Daniel Nash, Venegas’s son and Appellant’s friend, was also in the bedroom.
Cameron arrested Appellant and took him outside. After law enforcement placed Appellant in
the patrol car, he began striking the car window with his head, apparently either in an effort to
break the window or hurt himself. Cameron noted that on the day of the arrest, Appellant’s
appearance was consistent with what he knew to be signs of chronic methamphetamine use.

1
Cameron went to the address to locate Appellant on information from Davenport. Davenport was the
primary person in charge of investigating Appellant.
Nash informed Cameron that another person with an outstanding arrest warrant was
present, namely Appellant’s then-girlfriend, Tabitha Love. Cameron located Love lying on a
sofa in the living room underneath a pile of clothing and arrested her. In the course of her arrest,
Love informed Cameron that Appellant had a substantial amount of illegal drugs in the back
bedroom. Venegas gave law enforcement permission to search the house. Investigator Glenn
Davenport, then a special agent with the East Texas Anti-Gang Unit, conducted the search of the
residence and located a small pink bag on top of the mattress in the back bedroom. The bag
contained what was later confirmed to be methamphetamine. Thereafter, Appellant was charged
by indictment with the offense of possession of a controlled substance in the amount of more
than one gram but less than four grams.2 Appellant pleaded “not guilty” to the charged offense,
and this matter proceeded to a jury trial.
At trial, Davenport testified that when he arrived at Venegas’s house, before finally
deciding whether to conduct a search, he attempted to speak with Appellant, but Appellant was
“irate” and did not say much. Nash informed him that there was “probably” methamphetamine in
the house, but it was not his. Davenport testified that both Nash and Love told him they had
previously seen Appellant possess the pink bag containing the methamphetamine. During the
search, in addition to the pink bag, Davenport found some Newport cigarettes and a socket
wrench sitting on top of the mattress. Davenport knew that Newport was Appellant’s preferred
cigarette brand, and knew that Appellant frequently worked on motorcycles. Also in the back
bedroom, Davenport found some paper articles and documents that bore Appellant’s name,
which indicated to Davenport that Appellant had been staying in that bedroom.
Nash testified that he and Appellant were both asleep when law enforcement arrived.
Appellant had been sleeping in the back bedroom with Nash because Appellant and Love had
been arguing. Nash stated that he did not know about the methamphetamine’s presence or how it
got into the bedroom, but stated that Love had been “in and out” of the bedroom while Appellant
was asleep. Nash also told police about Love’s outstanding warrant because law enforcement
asked if anyone else in the house had warrants. Similarly, Nash told Davenport that there was
marijuana in the bedroom, inside his backpack, because Davenport instructed him to be truthful.
Nash did not recall telling Davenport that the pink bag containing the methamphetamine
belonged to Appellant.

2
TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (West 2023).

2
Venegas testified that Appellant had been sleeping in the back bedroom with Nash “every
night,” while Love slept in the living room. Venegas consented to the search of her house
because she had nothing to hide, as she was unaware of the methamphetamine’s presence. She
had never seen Appellant or Nash with a pink bag but heard Love asking the officers for her pink
purse during Love’s arrest.
At the conclusion of the evidence, the jury found Appellant “guilty.”
During the punishment phase, the State presented the testimony of Investigator Chris
Miller, who is employed by the Smith County District Attorney’s office but is assigned to the
East Texas Anti-Gang Unit. Miller previously served as a gang intelligence officer with the Tyler
Police Department for over twenty years. Miller stated that in his experience, gang members are
usually involved in multiple illegal activities, including murder, sex trafficking, robbery, drug
trafficking, home invasions, and automobile burglaries. He testified that Appellant had been
documented by the Texas Department of Criminal Justice as a street gang member since 2001
(when he admitted to law enforcement that he was a member of a local street gang known as the
East Side Locos) and a prison gang member since 2018. The jury saw photographs of several
tattoos on Appellant’s upper body. Miller testified that several of Appellant’s tattoos were
consistent with either those seen on members of the East Side Locos or members of a prison
gang known as “Tango Blast.”
The charge of the court on punishment alleged that 1) in 2007, Appellant was finally
convicted of the felony offense of aggravated assault with a deadly weapon, and 2) in 2016,
following his release from confinement for the aggravated assault, Appellant was finally
convicted of the felony offense of unlawful possession of a firearm by a felon. Appellant
pleaded “true” to both allegations. The jury assessed punishment of forty-five years’
imprisonment.3 This appeal followed.

3
Possession of a controlled substance as charged is usually a third-degree felony, punishable by
imprisonment for a term of no less than two years and no more than ten years. See TEX. HEALTH & SAFETY CODE
ANN. § 481.115(a), (c) (West 2023); TEX. PENAL CODE ANN. § 12.34(a) (West 2023). However, because Appellant
pleaded “true” to the State’s enhancement allegations regarding his prior felony convictions, the jury could assess a
punishment of either life imprisonment, or imprisonment for a term of no less than 25 years and no more than 99
years. TEX. PENAL CODE ANN. § 12.42(d) (West 2023).

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LEGAL SUFFICIENCY OF THE EVIDENCE
In his first issue, Appellant argues that the evidence was legally insufficient to support
the verdict at trial and subsequent judgment because no reasonable fact finder could conclude
that he legally possessed the methamphetamine.
Standard of Review
The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S.
Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
App. 2009). In Texas, the Jackson v. Virginia standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In reviewing the legal sufficiency of the evidence,
we consider all the evidence in the light most favorable to the verdict and determine whether any
rational factfinder could have found the essential elements of the crime beyond a reasonable
doubt based on the evidence and reasonable inferences from that evidence. Whatley v. State,
445 S.W.3d 159, 166 (Tex. Crim. App. 2014); Brooks, 323 S.W.3d at 898–99 (Tex. Crim. App.
2010). Juries are permitted to draw multiple reasonable inferences from direct or circumstantial
evidence. Anderson v. State, 416 S.W.3d 884, 891 (Tex. Crim. App. 2013). When the record
supports conflicting inferences, a reviewing court must presume that the fact finder resolved the
conflicts in favor of the prosecution and therefore defer to that determination. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are treated
equally. Id. A conclusion of guilt can rest on the combined and cumulative force of all the
incriminating circumstances; the duty of a reviewing court is to ensure that the evidence
presented supports a conclusion that the defendant committed the crime charged. See
Hernandez v. State, 190 S.W.3d 856, 864 (Tex. App.–Corpus Christi 2006, no pet.); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The sufficiency of the evidence is measured against the offense(s) as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). A hypothetically correct jury charge “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

4
the State’s theories of liability, and adequately describes the particular offense for which the
defendant is tried.” Id.
Applicable Law
To prove unlawful possession of a controlled substance, the State must prove that
Appellant (1) exercised actual care, control, and management over the contraband and (2) knew
the substance in his possession was contraband. Nixon v. State, 928 S.W.2d 212, 215 (Tex.
App.—Beaumont 1996, no pet.) (citing King v. State, 895 S.W.2d 701, 702 (Tex. Crim. App.
1995)). Because control over contraband may be jointly exercised by more than one person, the
State need not prove exclusive possession of the contraband. McGoldrick v. State, 682 S.W.2d
573, 578 (Tex. Crim. App. 1985); State v. Derrow, 981 S.W.2d 776, 799 (Tex. App.—Houston
[1st Dist.] 1998, pet. ref’d). A defendant’s presence, without more, is insufficient to establish
possession. Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App. 1982). When an accused is
not in exclusive possession of the location where contraband is found, additional independent
facts and circumstances may affirmatively link him to the contraband. Nixon, 928 S.W.2d at
215.
A nonexclusive list of factors relevant to knowing possession—or “affirmative links”—
includes (1) the defendant’s presence during the search, (2) whether the contraband was in plain
view, (3) the contraband’s proximity and accessibility to the defendant, (4) whether the
defendant was under the influence of narcotics, (5) whether the defendant possessed other
contraband, (6) whether the defendant made incriminating statements when arrested, (7) whether
the defendant attempted to flee, (8) whether the defendant made furtive gestures, (9) whether
there was an odor of contraband, (10) whether other contraband or drug paraphernalia was
present, (11) whether the defendant owned or had a right to possess the place where contraband
was found, (12) whether the place where the drugs were found was enclosed, (13) whether the
defendant was found with a large amount of cash, and (14) whether the defendant’s conduct
indicated consciousness of guilt. Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016)
(quoting Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)). An affirmative link
is a shorthand expression of what must be proven to establish that a person possessed a
controlled substance knowingly or intentionally. Brown v. State, 911 S.W.2d 744, 747 (Tex.
Crim. App. 1995). In other words, “the concept of an affirmative link is simply one way to
describe the sufficiency of circumstantial evidence to prove intent to possess drugs.” Brochu v.

5
State, 927 S.W.2d 745, 751 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (citing Brown,
911 S.W.2d at 747). Although these factors can help guide a court’s analysis, ultimately the
inquiry remains that set forth in Jackson—whether, based on the combined and cumulative force
of the evidence and any reasonable inferences therefrom, the jury was rationally justified in
finding guilt beyond a reasonable doubt. Tate, 500 S.W.3d at 414; see Jackson, 443 U.S. at 318-
19, 99 S. Ct. at 2789. “It is ... not the number of links that is dispositive, but rather the logical
force of all the evidence, direct and circumstantial.” Evans, 202 S.W.3d at 162.
Analysis
Appellant urges the evidence does not contain sufficient affirmative links to demonstrate
he knowingly possessed the methamphetamine. He asserts that he did not make any statements
about the contraband when arrested, did not appear to be under the influence, did not attempt to
flee, and did not have any money on his person. Appellant further argues that other individuals
had access to the bedroom in which the drugs were found, and that the evidence in this case
shows only that he was in the presence of the methamphetamine.
However, the evidence includes several factors linking Appellant to the contraband.
Appellant was present in Venegas’s house directly prior to the search and the contraband was
found in an enclosed space, namely the bedroom where he had just been sleeping (and therefore
to which he had access). The pink bag containing the contraband was in plain view and readily
visible to anyone who entered the bedroom. See Grant v. State, 989 S.W.2d 428, 434 (Tex.
App.—Houston [14th Dist.] 1999, no pet.). Cameron testified that Appellant began erratically
striking the patrol car window with his head after his arrest, and that Appellant looked on that
day as Cameron would expect a frequent methamphetamine user to look, both indications that
Appellant was under the influence of narcotics. Other items of contraband were present in the
bedroom, namely marijuana in Nash’s backpack, although Nash admitted ownership of the
marijuana. Appellant did not own Venegas’s house, but the testimony of Venegas and Nash
indicated that Appellant had been jointly possessing the bedroom for several nights. Each of
these factors connects Appellant to the contraband and supports a finding that Appellant
knowingly exercised care, custody, control, or management over same, even if that control was
not exclusive. See Espino-Cruz v. State, 586 S.W.3d 538, 543 (Tex. App.—Houston [14th
Dist.] 2019, pet. ref’d).

6
Although some of the witness testimony conflicted regarding Appellant’s relationship to
the pink bag, we presume that the jury resolved those conflicts in favor of the prosecution and
defer to that resolution. See Clayton, 235 S.W.3d at 778. Based on the combined and cumulative
force of this evidence and the reasonable inferences therefrom, we conclude that a rational jury
could have found beyond a reasonable doubt that Appellant knowingly possessed
methamphetamine. See Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789, 61 L. Ed. 2d 560; Tate,
500 S.W.3d at 414; see also TEX. HEALTH & SAFETY CODE ANN. § 481.115(c). Therefore, the
evidence was legally sufficient to support Appellant’s conviction for possession of a controlled
substance. See Brooks, 323 S.W.3d at 895. We overrule Appellant’s first issue.

EVIDENCE OF GANG AFFILIATION
In his second issue, Appellant contends that the trial court erred by allowing the State to
present evidence of Appellant’s gang affiliations during the punishment phase of trial because
the evidence was irrelevant, and because its probative value was substantially outweighed by the
danger of unfair prejudice.
Standard of Review and Applicable Law
A trial court has broad discretion in determining the admissibility of evidence presented
during the punishment phase of trial and may admit evidence deemed relevant to sentencing,
including evidence of other crimes or bad acts. Schultze v. State, 177 S.W.3d 26, 40 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d). We review the trial judge’s admission of evidence
for abuse of discretion, and we will uphold the trial court’s decision if it falls within the zone of
reasonable disagreement. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); Devoe
v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
Under the Texas Rules of Evidence, relevant evidence is generally admissible. TEX. R.
EVID. 402. Under Article 37.07, Section 3(a) of the Texas Code of Criminal Procedure, which
governs the admissibility of evidence during the punishment phase of a noncapital trial, evidence
may be offered by either party regarding “any matter the court deems relevant to sentencing,
including but not limited to the prior criminal record of the defendant, his general reputation, his
character, an opinion regarding his character, the circumstances of the offense for which he is
being tried, and … any other evidence of an extraneous crime or bad act.” TEX. CODE CRIM.
PROC. ANN. art. 37.07, § 3(a)(1) (West 2023).

7
Rule 403 of the Texas Rules of Evidence provides that “[t]he 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.” TEX. R. EVID. 403. “Rule 403 favors admissibility of relevant
evidence, and the presumption is that relevant evidence will be more probative than prejudicial.”
Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh’g). Only when
there exists a clear disparity between the degree of prejudice of the offered evidence and its
probative value is Rule 403 applicable. Young v. State, 283 S.W.3d 854, 877 (Tex. Crim. App.
2009).
In general, a claim is preserved for appellate review only if (1) the complaint was made
to the trial court by a timely and specific request, objection, or motion, and (2) the trial court
either ruled on the request, objection, or motion, or refused to rule, and the complaining party
objected to that refusal. TEX. R. APP. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim.
App. 2003). An objection should be made as soon as the ground for objection becomes apparent.
Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995).
Analysis
Texas law permits the admission of a defendant’s gang affiliations during punishment, as
gang membership is relevant because it relates to the defendant’s character. See Beasley v. State,
902 S.W.2d 452, 456 (Tex. Crim. App. 1995); see also Beham v. State, 559 S.W.3d 474, 478
(Tex. Crim. App. 2018) (“[E]vidence that the defendant is an active member of a gang that
regularly engages in criminal activities ... is almost always relevant for sentencing purposes.”).
Membership in a gang is also among the type of “bad acts” that are relevant to sentencing, and
evidence thereof is explicitly permitted by Article 37.07 of the Code of Criminal Procedure.
Sierra v. State, 266 S.W.3d 72, 78 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). If the gang
is involved in misconduct or illegal activity, it is not necessary to link the defendant to bad acts
so long as the factfinder is (1) provided with evidence of the defendant’s gang membership, (2)
provided with evidence of the gang’s character and reputation, (3) not required to determine if

8
the defendant committed the bad acts or misconduct, and (4) only asked to consider the
reputation or character of the accused. Beasley, 902 S.W.2d at 457.4
Miller’s testimony fulfills the first two Beasley factors. He testified that Appellant was
listed in a database of known gang members maintained by the TDCJ as a member of both a
“criminal street gang” and a prison gang classed as a “security threat group.” See Aguilar v.
State, 29 S.W.3d 268, 270 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (description of a
gang as a “criminal street gang” sufficient to establish the gang’s bad reputation and satisfy the
second Beasley factor); see also Harris v. State, No. 2-03-417-CR, 2005 WL 2100466, at *2
(Tex. App.—Fort Worth Aug. 31, 2005, no pet.) (mem. op., not designated for publication)
(second Beasley factor does not require evidence of specific criminal acts or types of criminal
activity). The jury saw photographs of Appellant’s tattoos, and Miller testified as to their
meanings and association with Appellant’s membership in both gangs. Finally, Miller testified
that in 2001, Appellant admitted his membership in the East Side Locos to law enforcement.
This evidence satisfies the test articulated in Beasley and is therefore generally relevant evidence
of Appellant’s character in the punishment phase of trial.5
Appellant next contends that the probative value of the evidence of Appellant’s gang
membership outweighed its prejudicial effect under Rule 403, because the evidence “did not
contribute to the jury’s mission to formulate the sentence” in this matter.6 However, the record
shows that Appellant did not raise a specific Rule 403 objection during trial regarding any of the
evidence of his gang affiliations. Defense counsel initially objected to the photographs of
Appellant’s tattoos based on relevance and his Fifth Amendment right to remain silent, both of
which the trial court overruled. Counsel then requested a running objection to “the entire
testimony regarding criminal activity of street gangs through the years,” “this entire line of
questioning,” and “the testimony of the officer.” The trial court stated that defense counsel was

4
Even if a defendant is no longer affiliated with the gang at the time of the offense, evidence that he was a
gang member is relevant, and therefore admissible, because it relates to his character. Ho v. State, 171 S.W.3d 295,
305 (Tex. App.–Houston [14th Dist.] 2005, pet. ref’d).
5
Appellant neither objected at trial nor presents argument on appeal regarding the third and fourth Beasley
factors.
6
Appellant does not make any argument regarding the factors of the Rule 403 balancing test, which both
trial courts and reviewing courts must use when ruling on Rule 403 objections. See Erazo v. State, 144 S.W.3d 487,
491–92 (Tex. Crim. App. 2004).

9
permitted a running objection “to all the exhibits that [counsel for the State] is getting ready to
put in … and also to [Miller’s] testimony.” It is axiomatic that if a trial objection does not
comport with arguments on appeal, error has not been preserved. TEX. R. APP. P. 33.1(a);
Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). An objection stating one legal
theory may not be used to support a different legal theory on appeal. See Broxton v. State, 909
S.W.2d 912, 918 (Tex. Crim. App. 1995). Therefore, Appellant’s objections during the
punishment phase, which did not mention Rule 403, were insufficient to preserve his Rule 403
argument for our review.7
Even if Appellant had preserved error on this issue, he has not shown how the evidence
caused unfair prejudice, which is necessary for exclusion of evidence under Rule 403. See TEX.
R. EVID. 403. Appellant’s involvement in a criminal street gang and a prison gang was highly
probative of his character and the jury was entitled to know of such involvement when assessing
Appellant’s sentence. See Beasley, 902 S.W.2d at 456; Beham, 559 S.W.3d at 478. Although
this type of evidence is obviously unfavorable to Appellant, as previously stated, only when there
exists a clear disparity between the degree of prejudice of the offered evidence and its probative
value does Rule 403 bar admission, and Appellant has not shown such a disparity. See Young,
283 S.W.3d at 877. The trial court’s ruling that the evidence of Appellant’s gang affiliations was
admissible was well within the zone of reasonable disagreement. Henley, 493 S.W.3d at 82-83.
Because we cannot conclude that the trial court abused its discretion in admitting evidence of
Appellant’s gang membership at the punishment phase, we overrule Appellant’s second issue.

DISPOSITION
Having overruled Appellant’s first and second issues, we affirm the judgment of the trial
court.

JAMES T. WORTHEN
Chief Justice

7
See Merino v. State, No. 12-15-00138-CR, 2016 WL 2941173, at *3 (Tex. App.—Tyler May 18, 2016,
no pet.) (mem. op., not designated for publication) (objection that testimony created potential prejudice not
sufficient to preserve Rule 403 complaint); Sony v. State, 307 S.W.3d 348, 356 (Tex. App.—San Antonio 2009, no
pet.) (relevance objection did not preserve Rule 403 complaint); Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref’d) (“A rule 403 objection is not implicitly contained in relevancy or 404(b)
objections; rather, a specific rule 403 objection must be raised to preserve error.”).

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Opinion delivered June 14, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

11
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 14, 2023

NO. 12-22-00229-CR

DAVID CHANCE STARR,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-0934-21)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.