Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00516-CR
Kedreen Marque PUGH, Appellant
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. Valenzuela, 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. 04-19-00516-CR
reach. 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.
BACKGROUND
Police officers pulled appellant over while he was driving and arrested him on an
outstanding warrant. Appellant was placed in the back of a patrol vehicle, and Officer Johnny
Lopez drove appellant to police headquarters. Meanwhile, Detective Joe Rios drove the car that
appellant had driven to a gas station for appellant’s wife to pick up. Detective Rios testified he
had no intention of searching appellant’s vehicle and did not initially search the vehicle. While on
route to police headquarters, appellant told Officer Lopez that he had “stuff” in the car. Officer
Lopez asked appellant 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 trial court denied appellant’s pre-trial motion to
suppress his statement that he had drugs and a small handgun in the car. At trial, a recording of
appellant’s statement was admitted. The State also sought to admit evidence of the handgun and
cocaine found in appellant’s vehicle. Appellant objected on the basis that the evidence was more
prejudicial than probative. The trial court sustained the objection as to evidence of the cocaine but
overruled the objection as to evidence of the handgun. Consequently, the handgun, testimony
about the officers’ recovery of the handgun, and several pictures of the handgun were admitted
into evidence. The jury found appellant guilty.
-2- 04-19-00516-CR
By his second issue, appellant challenges the admission of evidence of the handgun found
in the car on the ground that the prejudicial value of the evidence outweighed its probative value.
STANDARD OF REVIEW AND APPLICABLE LAW
“[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, 722 (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) (citation 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.” TEX. R. EVID. 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 balances, 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 435, 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.—Houston [14th Dist.] 2016, pet. ref’d).
-3- 04-19-00516-CR
DISCUSSION
We hold the trial court did not abuse its discretion 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. Probativeness 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
proving the specific intent of appellant. See Puente v. State, 888 S.W.2d 521, 527 (Tex. App.—
San Antonio 1994, no pet.). Evidence of the handgun was probative to show appellant’s “intent
to deliver” heroin in a way that evidence of cocaine was not, and numerous courts have drawn the
connection between firearms and the drug 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 frequently 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.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00516-CR
Kedreen Marque PUGH, Appellant
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. Valenzuela, 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. 04-19-00516-CR
reach. 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.
BACKGROUND
Police officers pulled appellant over while he was driving and arrested him on an
outstanding warrant. Appellant was placed in the back of a patrol vehicle, and Officer Johnny
Lopez drove appellant to police headquarters. Meanwhile, Detective Joe Rios drove the car that
appellant had driven to a gas station for appellant’s wife to pick up. Detective Rios testified he
had no intention of searching appellant’s vehicle and did not initially search the vehicle. While on
route to police headquarters, appellant told Officer Lopez that he had “stuff” in the car. Officer
Lopez asked appellant 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 trial court denied appellant’s pre-trial motion to
suppress his statement that he had drugs and a small handgun in the car. At trial, a recording of
appellant’s statement was admitted. The State also sought to admit evidence of the handgun and
cocaine found in appellant’s vehicle. Appellant objected on the basis that the evidence was more
prejudicial than probative. The trial court sustained the objection as to evidence of the cocaine but
overruled the objection as to evidence of the handgun. Consequently, the handgun, testimony
about the officers’ recovery of the handgun, and several pictures of the handgun were admitted
into evidence. The jury found appellant guilty.
-2- 04-19-00516-CR
By his second issue, appellant challenges the admission of evidence of the handgun found
in the car on the ground that the prejudicial value of the evidence outweighed its probative value.
STANDARD OF REVIEW AND APPLICABLE LAW
“[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, 722 (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) (citation 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.” TEX. R. EVID. 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 balances, 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 435, 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.—Houston [14th Dist.] 2016, pet. ref’d).
-3- 04-19-00516-CR
DISCUSSION
We hold the trial court did not abuse its discretion 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. Probativeness 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
proving the specific intent of appellant. See Puente v. State, 888 S.W.2d 521, 527 (Tex. App.—
San Antonio 1994, no pet.). Evidence of the handgun was probative to show appellant’s “intent
to deliver” heroin in a way that evidence of cocaine was not, and numerous courts have drawn the
connection between firearms and the drug 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 frequently 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
paraphernalia.’”) (quotations 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 had the potential to impress the jury in
some irrational 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. Evidence of the
handgun is prejudicial but is not unfairly prejudicial because the evidence directly relates to the
charged offense, which required intent to deliver. See id. (“‘Unfair prejudice’ refers only to
-4- 04-19-00516-CR
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 considering the indicted offense. Id. at 441. Evidence of the handgun was
probative of appellant’s intent to deliver, as alleged in the indictment, and could not have distracted
the jury. See 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 factor focuses on the proponent’s need for the 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 substance.
Evidence of the handgun was cumulative of other paraphernalia suggesting appellant was a drug
dealer. See Pugh, 624 S.W.3d at 569. Therefore, the fourth factor weighs against admissibility.
Nevertheless, we 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 sum of factors weighed in favor of
admissibility, although State did not have a great need for challenged evidence).
CONCLUSION
The judgment of the trial court is affirmed.
Rebeca C. Martinez, Chief Justice
DO NOT PUBLISH
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