JOSE CHEPITO AGUILAR, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM and Opinion August 18, 2008

In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00660-CR
No. 05-07-00661-CR
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JOSE CHEPITO AGUILAR, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F-0669925-W, F-0669926-W
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OPINION

Before Justices Moseley, Francis, and Lang
Opinion By Justice Lang

        Following a consolidated trial, a jury found appellant, Jose Chepito Aguilar, guilty of two drug offenses: (1) possession of cocaine in an amount of 400 grams or more, with intent to deliver; and (2) possession of methamphetamine in an amount of four grams or more, but less than 200 grams, with intent to deliver. Additionally, the jury found appellant had used or exhibited a deadly weapon during the commission of both offenses. In cause number F-0669925-W, the case involving cocaine, the jury assessed punishment at thirty-five years' imprisonment and a fine of $100,000. In cause number F-0669926-W, the case involving methamphetamine, appellant pleaded not true to one enhancement paragraph, which the jury found true. The jury assessed punishment at thirty- five years' imprisonment and a fine of $10,000.
        Fifteen issues are presented by appellant on appeal. Appellant contends the trial court erred by denying his “motion to suppress the illegal search of the premises” where he was arrested. In addition, appellant asserts the trial court erred by overruling his objections regarding: (1) charging the jury on a lesser included offense in each case; (2) charging the jury on the proper application of the law of warrantless search of a premises; (3) charging the jury on the law of parties; (4) generalized testimony concerning gangs; (5) photographs of body tattoos; and (6) photographs of an extraneous offense. Further, appellant asserts the trial court erred in denying his motions for mistrial after the prosecutor: (1) by his statements, struck at appellant over the shoulder of his defense counsel; (2) engaged in prohibited argumentative questioning; (3) called appellant “a punk” during jury argument; and (4) argued outside the record about speculative testimony concerning appellant's mother. For the reasons described below, we decide against appellant on all issues. The trial court's judgments are affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND

        At trial, appellant pleaded not guilty in both cases and did not testify. Appellant filed a written pretrial motion to suppress “all tangible evidence seized” at the 6158 Farnsworth location where appellant was arrested on August 31, 2006, as well as all related photographs, statements and testimony. In that motion, appellant asserted in relevant part, “All matters seized by law enforcement officers or their agents were obtained illegally, in violation of the Defendant's constitutional rights under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution, Article I, Section 9, of the Constitution of the State of Texas and Article 38.23, Texas Code of Criminal Procedure.” The trial court carried appellant's motion to suppress through trial and denied it after the evidence was closed.         Mark Villareal, a Dallas police officer, testified at trial respecting the arrest of appellant and seizure of evidence. On August 31, 2006, police received an anonymous fax reporting drug activity at 6158 Farnsworth. At approximately three o'clock that afternoon, Villareal and a team of five other officers went to the house at that address. Villareal knocked on the front door of the house. The door was opened by Dustin Bradshaw. There was no furniture inside the house, and it appeared carpet was being installed. Villareal saw three other men in the living room and heard “a large commotion coming from the rear of the residence.” He asked the men in the living room whether anyone else was in the residence, and they looked toward the rear of the house, in the direction of the commotion. He “called out for whoever was back there, that we were the Dallas Police Department, to come out.” Approximately twenty seconds later, appellant came from the rear of the residence to the front door.
        As appellant approached the front door, Villareal noticed a three-foot tall refrigerator against the back wall of the living room, about fifteen feet away. On top of the refrigerator, he saw a green, leafy substance that appeared to be marijuana. Also on top of the refrigerator, he saw a white crystal-like substance that appeared to be methamphetamine, a digital scale, and what appeared to be drug packaging. The items on the refrigerator were in plain view from the front doorway. In addition, Villareal saw what appeared to be a marijuana cigarette on the living room floor.
        Appellant appeared “very nervous and shaken.” At that point, Villareal explained why the police were there and questioned appellant. Appellant told police he stayed at the house and was the sole resident. Villareal stated, “At that time, with all the evidence that was in our plain view, we decided to go ahead and take him into custody and place him under arrest.” In appellant's pockets, police found a .45 caliber bullet, keys to the house, and a blue spoon with white residue on it.         The police officers obtained the names of the other men at the house and found that one of them, Danny Blystone, had outstanding warrants. Police arrested Blystone, who, according to Villareal, “was a few feet away from the refrigerator.” Incident to Blystone's arrest, police searched inside the refrigerator and found more methamphetamine.
        Then, according to Villareal, the police officers made a protective sweep of the residence “to search for other individuals inside the residence who might have posed a threat.” In one bedroom, Villareal saw a washer and dryer against a wall. On top of the washer and dryer were a large “Ziploc baggie” containing a white powdery substance that appeared to be cocaine and a digital scale with a small amount of white powdery substance on it. Inside the dryer was a large mechanical scale. On the floor of an open closet in another bedroom, police found an unloaded .45 caliber handgun and a loaded shotgun.
        Several other witnesses testified at trial. Jeff Mueller, the custodian of records at J.C. Leasing, testified the property at 6158 Farnsworth was leased by appellant pursuant to a rental agreement signed on August 14, 2006. Mueller identified a copy of the rental agreement signed by appellant and identified appellant in the courtroom. Mueller testified a copy of appellant's rental agreement was faxed to police on August 31, 2006.
        Andrew Moore, a drug chemist with the Southwest Institute of Forensic Science, testified field and laboratory testing confirmed the substances seized were marijuana, methamphetamine, and cocaine. In addition, Moore testified as to the weight of the substances found.
        Dustin Bradshaw (“D. Bradshaw”) testified he lived on Farnsworth and had known appellant since they were children. He stated that on August 31, 2006, he was laying carpet at 6158 Farnsworth with his cousin, Glenn Bradshaw; his father, David Bradshaw; Danny Blystone; and “some other dude named Lupe.” D. Bradshaw testified appellant was paying him, his cousin, and his father fifty dollars per day, apiece, for their work. When police came to the door asking about drug activity, D. Bradshaw and the others told police they were just repairing the house and “there's nothing been going on.” The police explained to him “they had a triple beam [scale] or something setting right there, and that's what gave 'em probable cause to come inside.” D. Bradshaw stated a “triple beam” scale was sitting on top of a small refrigerator and was going to be thrown away. Finally, D. Bradshaw said he did not recall seeing any methamphetamine, marijuana, or other drugs at the house.
        Glenn Bradshaw (“G. Bradshaw”) testified appellant was in the living room when police arrived, not in the back of the house. G. Bradshaw observed appellant telling the police officers they could not search the house. Appellant tried to close the door, but the police “pushed it back open and told [appellant] to sit down on the front porch.” G. Bradshaw testified there was a scale on top of a “bar” next to the refrigerator, but he did not see any drugs in the living room.
        Jessica Fortier, a Dallas police officer, testified she was one of the officers who accompanied Villareal to 6158 Farnsworth on August 31, 2006. She said Villareal remained on the front porch while speaking with the men inside the house. In the meantime, she ran subject checks from a squad car on the names of the men. Fortier observed Villareal shouting into the house for someone to come out, and at that point she saw appellant “and they placed him on a chair on the porch.” As she approached Villareal to tell him Blystone had outstanding warrants, Fortier saw substances she believed to be drugs “on top of the refrigerator in plain view,” along with a small black scale. She testified appellant told them he was “in charge of the location.” After appellant was arrested, Fortier etered the house to arrest Blystone, but did not participate in the protective sweep of the house.
        Joshua Sanderlin, another Dallas police officer present during the incident at issue, testified he was assigned to secure the rear of the house. He testified that after appellant and Blystone had been arrested, he saw “marijuana and also a small bag of methamphetamine” on top of a refrigerator “probably ten, maybe 12 feet from the front door.”
        Barry Ragsdale, an officer in the Narcotics Division of the Dallas Police Department, testified regarding the distribution and effects of cocaine and methamphetamine. According to Ragsdale, the quantities of drugs seized at 6158 Farnsworth were too large for personal use.
        The defense called Billy Joe Aguilar (“B. Aguilar”), a cousin of appellant. He testified on August 31, 2006, he drove to 6158 Farnsworth to see how the remodeling was coming along and saw police officers at the house. He saw appellant in the driveway next to a squad car with his hands cuffed. A female police officer was trying to put an object that appeared to be either a spoon or a pipe into appellant's pocket, and appellant was trying to prevent her from doing so. Subsequently, B. Aguilar accompanied one of the police officers into the house while the officer did a “quick lookover to see if they forgot anything.” He said he saw the police officer grab something from the top of the refrigerator in the living room and put it in his pocket.
        Guadalupe Garcia, Jr., testified he helped with renovations on the house at 6158 Farnsworth on an unpaid basis and was in the living room of the house when police arrived on August 31, 2006. According to Garcia, police “pushed the door open” and immediately arrested and handcuffed appellant. Garcia testified that on one occasion prior to the incident at issue, he observed Blystone escort a man to the back rooms of the house while appellant was not present. Blystone did not allow Garcia to follow.
        Karen Aguilar, appellant's wife, testified she and appellant were renovating the house at 6158 Farnsworth and planned to move there with their two children. On cross-examination, she said she had never seen the guns found at the house, the scale, or any drugs. According to Karen Aguilar, appellant worked for a landscaping company.         The jury found appellant guilty of the offenses alleged in the indictments. Appellant pleaded not true to an enhancement paragraph regarding a conviction for aggravated assault.
        During the punishment phase of trial, Norman Smith, a Dallas police officer assigned to the Dallas Police Department Gang Unit, testified appellant was a member of a street gang called Vagos 18 and a prison gang called Tango Blast. Smith explained the nature and purpose of street and prison gangs, including Vagos 18 and Tango Blast, and described the significance of appellant's tattoos.
        Richard Hamb, an officer with the Dallas County Sheriff's Office, Intake Identification Section, testified he fingerprinted appellant on March 23, 2007. He compared appellant's fingerprints with fingerprints made by a person convicted of several offenses committed prior to the offenses at issue, including a February 1999 aggravated assault, and found the fingerprints to be the same.
        Randall Norris testified that in February 1999, several men, including appellant, kicked him and beat him with pieces of lumber and beer bottles after making “derogatory remarks” to Norris's fiancée. Photographs showing Norris's injuries and the 1999 crime scene were admitted into evidence.
        Testifying in support of appellant during the punishment phase of trial were Flavia Gallegos, appellant's mother-in-law; Isabelle Martinez Aguilar, a sister-in-law of appellant; and Karen Aguilar. After the jury found the enhancement paragraph true and assessed punishment in both cases, the trial judge sentenced appellant accordingly and ordered that the two sentences run concurrently. This appeal followed.

II. MOTION TO SUPPRESS

        In his first issue, appellant asserts, “The trial court erred in denying appellant's motion to suppress the illegal search of the premises where appellant was arrested.” According to appellant, “the investigating officer did not have, (1) reasonable suspicion and or (2) probable cause to conduct the warrantless search of the premises as he did.” The State asserts, “Though the police searched appellant's house without a warrant, their searches all fell within well-recognized exceptions to the warrant requirement.” Therefore, the State contends, the trial court properly denied appellant's motion to suppress.
A. Standard of Review

        The appropriate standard for reviewing a trial court's ruling on a motion to suppress evidence was articulated in Guzman v. State, , 88-89 (Tex. Crim. App. 1997). See also St. George v. State, , 725 (Tex. Crim. App. 2007). We apply a bifurcated standard of review, giving “almost total deference to a trial court's determination of the historical facts” and reviewing de novo the court's application of the law of search and seizure. Guzman, 955 S.W.2d at 89; see also St. George, 237 S.W.3d at 725. When a trial court's ruling on a motion to suppress turns on the credibility of witnesses, we give almost total deference to a trial court's determination because of its fact-finding role. Nilson v. State, 106 S.W.3d 869, 872 (Tex. App.-Dallas 2003, no pet.) (citing Guzman, 955 S.W.2d at 89; Lane v. State, 971 S.W.2d 748, 752 (Tex. App.-Dallas 1998, pet. ref'd)). We review de novo mixed questions of law and fact that do not turn on the credibility and demeanor of witnesses. St. George, 237 S.W.3d at 725; Guzman, 955 S.W.2d at 89; see also Kothe v. State, , 62-63 (Tex. Crim. App. 2004) (whether specific search or seizure was reasonable is mixed question of law and fact that is reviewed de novo). Where, as here, the trial court makes no explicit findings of historical facts, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact supported by the record. Ford v. State, , 493 (Tex. Crim. App. 2005); Smith v. State, 176 S.W.3d 907, 913 (Tex. App.-Dallas 2005, pet. ref'd) (citing Carmouche v. State, , 328 (Tex. Crim. App. 2000)).
         In a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Nilson, 106 S.W.3d at 872 (citing State v. Ballard, , 891 (Tex. Crim. App. 1999)). As the trier of fact, the trial court may disbelieve testimony even if it is uncontroverted. Id. (citing Johnson v. State, , 748 (Tex. Crim. App. 1994)).
B. Applicable Law

        Both the Fourth Amendment to the United States Constitution and article I, section 9 of the Texas Constitution protect the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const. amend. IV; Tex. Const. art. I, § 9; see also Garza v. State, 137 S.W.3d 878, 885 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (article I, section 9 of Texas Constitution does not offer greater protection to individuals against unreasonable searches and seizures than Fourth Amendment). The United States Supreme Court has held that the Fourth Amendment generally imposes a warrant requirement for searches. Katz v. United States, , 357 (1967); see also Johnson v. United States, , 13-14 (1948). “A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, , 113 (1984).
        Warrantless searches are “per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.” Katz, 389 U.S. at 357. Search incident to arrest and search under exigent circumstances are among such exceptions. McGee v. State, , 615 (Tex. Crim. App. 2003). Incident to a lawful arrest, police may conduct a warrantless search of the arrestee's person and the area within his immediate control. Tarpley v. State, , 531 (Tex. Crim. App. 1978). Additionally, a warrantless search may be justified where probable cause existed at the time the search was made and exigent circumstances made the procuring of a warrant impracticable. McNairy v. State, , 106 (Tex. Crim. App. 1991). Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead one of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. Id. (citing Washington v. State, , 535 (Tex. Crim. App. 1983)). Situations creating exigent circumstances usually include factors pointing to some danger to the officer or victims, an increased likelihood of apprehending a suspect, or the possible destruction of evidence. Id. at 107.
        To suppress evidence on grounds of an illegal search or seizure, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Ford, 158 S.W.3d at 492. A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Id. Once the defendant has made this showing, the burden of proof shifts to the State, which must then establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id.
C. Application of Law to Facts

        Appellant argues that “[b]esides an untested and uncorroborated anonymous tip, the officers had nothing to give them probable cause to search [the house at 6158 Farnsworth].” Therefore, appellant contends, “the warrantless entry and search of the home was unreasonable.”
        It is undisputed police did not have a warrant to search the premises at 6158 Farnsworth. However, the Texas Court of Criminal Appeals has stated: Nothing in our Constitutions prevents a police officer from addressing questions to citizens on the street; it follows that nothing would prevent him from knocking politely on any closed door. Further, nothing in the statutes or governing constitutional provisions requires any citizen to respond to a knock on his door by opening it. Indeed, the very act of opening the door exhibits an intentional relinquishment of any subjective expectation of privacy, particularly when illegal activity may be readily detected by smell and sight by anyone standing at the doorway.

Rodriguez v. State, , 307 (Tex. Crim. App. 1983) (citation omitted).
        Here, the record shows police knocked on the door of the house and the door was opened by D. Bradshaw. The drugs and drug paraphernalia on the refrigerator in the living room were visible to police from the doorway. Because those items were “knowingly exposed to the public,” appellant had no subjective expectation of privacy in the living room of the Farnsworth house. Id. Accordingly, we conclude appellant was not subjected to a “search” within the meaning of the law as to those items. Id. Therefore, no search warrant was required with respect to those items. Id. Further, because police believed those items to be contraband and thus had probable cause to associate those items with criminal activity, those items were properly seized subject to the plain- view seizure doctrine. See Martinez v. State, , 685 (Tex. Crim. App. 2000) (where item is in plain view of law enforcement officials at vantage point where they have right to be, and it is immediately apparent there is probable cause to associate item with criminal activity, officials may seize item).
        The record shows appellant told police he was the sole resident of the house, which the other men on the premises confirmed. On that basis, the officers concluded appellant had care, custody, and control of the house and its contents. See Poindexter v. State, , 405 (Tex. Crim. App. 2005). Thus, the officers had probable cause to arrest appellant for drug possession. See id.; see also Johnson v. State, 171 S.W.3d 643, 650 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) (police had probable cause to arrest defendant where, while standing outside of defendant's residence, they observed baking soda and triple beam scale in defendant's kitchen). Further, the officers discovered Blystone had outstanding warrants and arrested him as well. Incident to Blystone's arrest, the officers properly searched the area within his immediate control and found additional contraband inside the living room refrigerator. See Tarpley, 565 S.W.2d at 531.
        The State asserts, “Having arrested appellant and Blystone, the officers properly made a protective sweep of the back rooms to make sure no one else was inside who might threaten their safety.” A “protective sweep” is a “quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” Reasor v. State, , 815 (Tex. Crim. App. 2000) (quoting Maryland v. Buie, , 328 (1990)). “Protective sweeps” are not per se unreasonable under the Fourth Amendment. Id. at 816. However, police must have a “reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.” Id. (quoting Buie, 494 U.S. at 336). The reasonableness of the suspicion or belief is evaluated under an objective standard. Id. at 817.
        Villareal testified at trial that before appellant emerged from the back of the house, police heard a “large commotion” coming from that area. After Villareal called for those in the back rooms to come out, appellant was the only person officers saw emerge from the back of the house. The trial court, evaluating the testimony, could reasonably have found that exigent circumstances existed that allowed the officers to conduct a sweep of the house for their protection. See Estrada v. State, , (Tex. Crim. App. 2005); Beaver v. State, 942 S.W.2d 626, 629 (Tex. App.-Tyler 1996, pet. ref'd).
        Alternatively, the State argues “the drugs in plain view gave the officers probable cause to search the house” and a warrantless search was justified to prevent the destruction of evidence or contraband. The plain view doctrine applies only to seizures, not searches. See Russo v. State, 228 S.W.3d 779, 802 (Tex. App.-Austin 2007, pet. ref'd). However, police may conduct a warrantless search of a residence if they have probable cause combined with exigent circumstances that make it impractical to procure a warrant. McNairy, 835 S.W.2d at 106.
        As discussed above, the officers in this case believed the items in plain view on the refrigerator to be contraband and thus had probable cause to associate those items with criminal activity. See Johnson, 171 S.W.3d at 650. Further, because appellant emerged from the back of the house after a “large commotion,” it was reasonable for police to believe evidence of criminal activity would be found in the back area of the house. See McNairy, 835 S.W.2d at 106. The noise caused by the officers' arrest of appellant and Blystone would likely have made any persons in the back rooms of the house aware police were present, and such persons would have had time to dispose of contraband if police had delayed their search of that area of the house. See id. at 107. Additionally, the officers could have reasonably believed that delaying the search would have posed a potential danger to officers guarding the site while a warrant was sought. See id.
        Viewing the evidence in the light most favorable to the trial court's ruling, we conclude each search or seizure in this case falls within an exception to the warrant requirements of the Fourth Amendment and article I, section 9 of the Texas Constitution. Accordingly, the trial court did not err in denying appellant's motion to suppress. We decide against appellant on his first issue.
II. APPELLANT'S MOTIONS FOR MISTRIAL

        Appellant's second, third, ninth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth issues concern the trial court's denial of appellant's motions for mistrial based on improper questioning and improper jury argument during the guilt/innocence and punishment phases of trial. We address these eight issues together.
A. Standard of Review

         A mistrial is the trial court's remedy for improper conduct that is so prejudicial that expenditure of further time and expense would be wasteful and futile. Hawkins v. State, , 77 (Tex. Crim. App. 2004). When the trial court sustains an objection and instructs the jury to disregard, but denies a motion for mistrial, the issue is whether the trial court abused its discretion by denying the mistrial. Id. at 76-77. We must affirm the trial court's decision if it is within the zone of reasonable disagreement. Wead v. State, , 129 (Tex. Crim. App. 2004).
B. Applicable Law

        A mistrial due to an improper question is required only when “the improper question is 'clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors.'” Simpson v. State, , 272 (Tex. Crim. App. 2003) (quoting Wood v. State, , 648 (Tex. Crim. App. 2000)). Generally, an instruction to disregard cures any prejudice resulting from an improper question. Wood, 18 S.W.3d at 648; Ridyolph v. State, , 787 (Tex. Crim. App. 1977).
        Proper jury argument falls within four general areas: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to opposing counsel's argument, and (4) pleas for law enforcement. Wesbrook v. State, , 115 (Tex. Crim. App. 2000). Arguments that exceed the permissible bounds of these approved areas do not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Id. The remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Id. An instruction to the jury to disregard the prosecutor's argument generally cures any error. See id.; Guidry v. State, , 154 (Tex. Crim. App. 1999); Dinkins v. State, , 357 (Tex. Crim. App. 1995).
C. Application of Law to Facts

        In his second issue, appellant asserts the trial court erred in denying his motion for mistrial “when the prosecutor by his statements were [sic] striking at the defendant over the shoulder of his defense counsel” during redirect examination of Villareal.   See Footnote 1 In his third issue, appellant contends the trial court erred in denying his motion for mistrial when the prosecutor struck at him over his counsel's shoulders during the State's rebuttal argument at the close of the guilt/innocence phase of trial. Appellant's ninth,   See Footnote 2 eleventh, twelfth, and thirteenth issues concern alleged error by the trial court in denying appellant's motion for mistrial “when the prosecutor engaged in prohibited argumentative questioning” during the punishment phase of trial and “continued to ask questions of witnesses in an argumentative form.” In his fourteenth issue, appellant asserts the trial court erred in denying his motion for mistrial after the prosecutor's jury argument during the punishment phase of trial “in which he called the defendant 'a punk.'” Finally, appellant contends in his fifteenth issue that the trial court erred in denying his motion for mistrial when, during that same argument, “the prosecutor argued outside the record about speculative testimony concerning appellant's mother.”
        The record does not show appellant moved for a mistrial following the statement complained of in his third issue. Accordingly, we conclude appellant's third issue has not been preserved for this Court's review. See Tex. R. App. P. 33.1. We decide against appellant on his third issue.
        The State argues in part that appellant's second, ninth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth issues are inadequately briefed because appellant does not explain why the trial court's instructions to disregard each challenged question or statement did not suffice to cure the harm, if any. Further, the State argues that even if the questions or statements complained of were improper, the trial court had no reason to believe its instructions to disregard could not cure whatever harm was caused.
        The record shows specific instructions to disregard were given by the trial court with respect to the questions or statements complained of in appellant's second, ninth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth issues. In his brief before this Court, appellant does not explain or address why such instructions did not suffice to cure the harm, if any. See Wood, 18 S.W.3d at 648. Therefore, we conclude these seven issues have been inadequately briefed and present nothing for review by this Court. See Torres v. State, 979 S.W.2d 668, 674 (Tex. App.-San Antonio 1998, no pet.) (overruling issue for lack of proper argument, including lack of harm analysis); Tex. R. App. P. 38.1(h). Appellant's second, ninth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth issues are decided against him.
III. JURY CHARGE ERROR

        Appellant's fourth, fifth, and sixth issues allege errors by the trial court with respect to the jury charge.
A. Standard of Review

        Appellate review of argued error in a jury charge involves a two-step process: (1) the determination of whether an error actually exists in the jury charge; and (2) an evaluation of whether sufficient harm resulted from the error. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Ngo v. State, , 743-44 (Tex. Crim. App. 2005).

B. Lesser Included Offenses

        In his fourth issue, appellant asserts the trial court erred in overruling his objection to charge the jury “on the lesser included offense in each case during the guilt/innocence stage of the trial.” Appellant contends, “The lesser included charge in the methamphetamine case would be for less than 4 grams and the lesser included charge on the cocaine case would be for less than 400 grams as each invokes one lower degree of punishment.” The State asserts the trial court properly refused to charge the jury on lesser included offenses.
1. Applicable Law

        Article 37.08 of the Texas Code of Criminal Procedure, which codifies the common law lesser-included-offense doctrine, provides: “In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense.” Tex. Code Crim. Proc. Ann. art. 37.08 (Vernon 2006). In determining whether a charge on a lesser included offense is required, a two-step analysis is to be used. Arevalo v. State, , 889 (Tex. Crim. App. 1997). First, the lesser included offense must be included within the proof necessary to establish the offense charged. Id. Second, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Id. If evidence from any source raises the issue of a lesser included offense, a charge on that offense is required. Jones v. State, , 257 (Tex. Crim. App. 1998). Anything more than a scintilla of evidence suffices to entitle a defendant to a lesser included offense charge. Id. The credibility of the evidence must not be considered in deciding whether to charge the jury on the lesser included offense. Id.
        2. Application of Law to Facts

        Appellant asserts the basis for his request is State's exhibit number 18, which is a photograph showing numerous bags purportedly containing illicit drugs seized from 6158 Farnsworth. Appellant contends the number of bags admitted into evidence at trial was considerably less than the number shown in exhibit number 18. According to appellant, a reasonable juror could deduce that the drugs seized were poured together, thus making the aggregate amount more than either four grams or 400 grams. Appellant contends:
Therefore, by dissecting the evidence presented; if the jury believed that the cocaine had been poured into one big bag out of several smaller bags, and the fact that there were four men present at the house who could have possessed the drugs; then they (jury) should have been allowed to consider such as a lesser included offense to the indictment of possession of a controlled substance, methamphetamine, in an amount less than four grams and possession of a controlled substance, cocaine, with intent to deliver in an amount less than 400 grams.”

        The State does not dispute that the first prong of the applicable two-step analysis, which addresses whether the lesser included offense is included within the proof necessary to establish the offense charged, has been satisfied in this case. However, the State argues appellant cannot meet the second-prong requirement that there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. The State asserts only one other person, Blystone, was linked to the drugs by more than a scintilla of evidence. The State contends that even if Blystone shared possession of the drugs, appellant would still be culpable as a party for the entire amount, because there is no evidence Blystone had exclusive control of any of the drugs.
        Appellant cites no evidence in the record, and we find none, that the drugs seized in this case were “poured into one big bag out of several smaller bags.” Moreover, even assuming, without deciding, that “more than a scintilla” of evidence linked the other four men in the house to the drugs, the record contains no evidence from which to infer that any of those four men had exclusive possession of any of the drugs. Joint possession of the drugs would not absolve appellant of party culpability for the entire quantity. See, e.g., Cude v. State, , 47 (Tex. Crim. App. 1986); Oaks v. State, , 176 (Tex. Crim. App. 1982). Accordingly, we conclude the trial court did not err in denying appellant's request to charge the jury on lesser included offenses in each case. Appellant's fourth issue is decided against him.
C. Plain View Doctrine

        In his fifth issue, appellant asserts the trial court erred in overruling his objection “to charge the jury on the proper application of the law of warrantless search of a premises in this case during the guilt/innocence stage of the trial.” According to appellant, the “law applicable to the facts of this case as far as reasonable search and seizure required that there be a felony being committed to authorize a warrantless search and arrest as in the case at bar.” The State argues the trial court properly overruled appellant's request to charge the jury that plain view seizures are legal only if the police discover “felony evidence” or “felony contraband.” The State asserts the plain view doctrine applies regardless of whether the offense charged is a felony or misdemeanor.
1. Applicable Law

        It is well settled that items in plain view may be seized by law enforcement personnel if the requirements of the “plain view doctrine” are met. Martinez, 17 S.W.3d at 685; State v. Haley, , 599 (Tex. Crim. App. 1991). “The plain view seizure doctrine requires a two-prong showing: (1) that law enforcement officials see an item in plain view at a vantage point where they have the right to be, and (2) it is immediately apparent that the item seized constitutes evidence-that is, there is probable cause to associate the item with criminal activity.” Martinez, 17 S.W.3d at 685 (citing Ramos v. State, , 365 (Tex. Crim. App. 1996)).

2. Application of Law to Facts

        The jury charge read, in relevant part, as follows:
[U]nder our law a peace officer may without a search warrant or without the defendant's voluntary consent, enter a premises and conduct a reasonable search if contraband or evidence is in plain view, and the officer sees such contraband or evidence from a lawful vantage point, and in that case entry into the premises without a search warrant or defendant's voluntary consent would be lawful.

        Appellant argues the charge should have included the word “felony” before “contraband” and before “evidence.” However, appellant cites no authority for his contention that the plain view doctrine pertains only to felony contraband or evidence of a felony. Further, Texas case law does not support that proposition. See id.; Merideth v. State, , 873 (Tex. Crim. App. 1980) (affirming conviction for misdemeanor possession of marijuana found in plain view). Accordingly, we conclude the trial court did not err in overruling appellant's request to add the disputed language to the jury charge. Appellant's fifth issue is decided against him.
D. Party Culpability

        In his sixth issue, appellant contends the trial court erred in overruling his objection “to charge the jury that applied the law of parties during the guilt/innocence stage of the trial.” Appellant argues, “[T]here was no evidence that a third person was committing any offense; therefore, the evidence did not support a charge on the law of parties.”
        The record shows that at trial, appellant objected to the party instruction in the charge on the ground that the indictment did not allege he acted as a party. The trial court overruled appellant's objection. See Sorto v. State, , 476 (Tex. Crim. App. 2005) (law of parties need not be pleaded in indictment). On appeal, appellant asserts the evidence did not raise a fact issue that appellant might be culpable as a party and not solely as a principal. Because appellant's trial objection does not comport with the issue he raises on appeal, he has not preserved his complaint for this Court's review. See id.; Tex. R. App. P. 33.1. We decide appellant's sixth issue against him.
                        IV. ADMISSION OF EVIDENCE

        Appellant's seventh, eighth, and tenth issues allege error by the trial court regarding admission of evidence during the punishment phase of trial.
A. Standard of Review

        When reviewing a trial court's decision on the admission of evidence, appellate courts use the abuse of discretion standard. Torres v. State, , 760 (Tex. Crim. App. 2002); Burden v. State, , 615 (Tex. Crim. App. 2001). The trial court's ruling will not be reversed unless that ruling falls outside the zone of reasonable disagreement. Torres, 71 S.W.3d at 760; Burden, 55 S.W.3d at 615.
B. Applicable Law

        During the punishment phase of trial, “evidence may be offered . . . as to any matter the court deems relevant to sentencing,” including evidence of the defendant's general reputation or character and “evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2008).
        Under Texas Rule of Evidence 403, evidence, although relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403; see also Montgomery v. State, , 389 (Tex. Crim. App. 1990) (rule 403 carries presumption probative value of relevant evidence is not substantially outweighed by other factors). A trial court, when undertaking a rule 403 analysis, 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. Gigliobianco v. State, , 641-42 (Tex. Crim. App. 2006). These factors may well blend together in practice. Id. at 642.
        Texas Rule of Evidence 611 provides in part that the trial court “shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” Tex. R. Evid. 611(a).
C. Application of Law to Facts
1. Gang Affiliation and Tattoos

        We address appellant's seventh and eighth issues together. In his seventh issue, appellant contends the trial court erred in overruling his objection to generalized testimony concerning gangs. In his eighth issue, appellant asserts the trial court erred in overruling his objection to photographs of his body tattoos. Appellant contends the complained of evidence was speculative and violated rules 403 and 611 of the Texas Rules of Evidence. In addition, appellant asserts his “right to a fair punishment hearing was denied due to this general evidence of gang activity without an appropriate linkage to Appellant as one who endorses or promotes the gang activities.”
        The State argues such evidence is generally admissible during the punishment phase of trial. Further, the State asserts the case law relied upon by appellant is inapplicable because the State presented evidence not only of appellant's association with the gangs at issue, but also of unlawful and violent acts of those gangs. Additionally, the State argues, “Appellant's claim is otherwise unsupported by argument, is inadequately briefed, and presents nothing for review.”
        Evidence of a defendant's gang membership is relevant because it relates to character. Beasley v. State, , 456 (Tex. Crim. App. 1995); see also Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). The types of activities in which the gang is involved must also be presented to the jury, so that they may determine if the defendant's gang membership is a positive or a negative character trait. Beasley, 902 S.W.2d at 456. If the gang is involved in misconduct or illegal activity, it is not necessary to link the defendant to the bad acts if the jury is “(1) provided with evidence of the defendant's gang membership, (2) provided with evidence of character and reputation of the gang, (3) not required to determine if the defendant committed the bad acts or misconduct and (4) only asked to consider reputation or character of the accused.” Id. at 457.
        Appellant asserts evidence concerning his gang membership and tattoos was unduly prejudicial because there was no showing he “was involved in current criminal activity that flowed directly from his alleged gang membership.” In support of that argument, he cites United States v. Lemon, 723 F.2d 922, 941 (D.C. Cir. 1983), in which the court held that in the absence of any link between the defendant and any illegal activities of an alleged criminal group, the sentencing judge's reliance on information about the defendant's alleged association with that group was improper. However, appellant does not explain why the holding of Lemon should be persuasive authority to this Court. Cf. Cain v. State, 976 S.W.2d 228, 236 (Tex. App.-San Antonio 1998, no pet.) (declining to follow interpretation of federal law in Lemon).         In addition, appellant cites Dawson v. Delaware, , 166-67 (1992), in which the United States Supreme Court held the First Amendment bars punishment phase evidence of a defendant's membership in a prison gang with racist beliefs unless the State also produces evidence of the gang's unlawful or violent acts. However, Dawson is distinguishable from the case before us. The evidence in this case showed appellant belonged to a street gang called Vagos 18, which has engaged in criminal activities including aggravated robberies, assaults, theft, drug dealing, and murder. In addition, the evidence showed appellant belonged to a prison gang called Tango Blast, organized for mutual protection and intimidation inside the prison system and for making contacts for crimes outside of prison. Because the State presented evidence of the criminal activity of the gangs at issue in this case, the holding of Dawson is inapplicable.
        The record before us does not show that the jury was required to determine whether appellant committed the bad acts or misconduct of the gangs of which he was a member. See Beasley, 902 S.W.2d at 457. Further, there is no evidence the jury was asked to consider anything other than appellant's reputation or character in connection with the challenged evidence. Id. Thus, it was not necessary, in this case, for the State to link appellant to the bad acts of the gangs in which he was shown to be a member. Id.
        Appellant does not address in his argument how the complained of testimony was speculative, nor does he explain how rule 611 applies to his contentions. Further, he does not apply a rule 403 analysis or provide argument regarding rule 403. Therefore, to the extent appellant relies on those grounds with respect to his seventh and eighth issues, those issues are inadequately briefed. See Tex. R. App. P. 38.1(h); see also McCarthy v. State, , 49 n.2 (Tex. Crim. App. 2001) (overruling issue where appellant failed to support contentions with legal authority applied to facts); Torres, 979 S.W.2d at 674 (issue overruled where appellant's argument was unclear). We decide appellant's seventh and eighth issues against him.
2. Photographs Relating to Extraneous Offense

        In his tenth issue, appellant asserts the trial court erred in overruling his objection to State's exhibits numbers 32-50, “photographs of an extraneous offense, whose probative value could not overcome their prejudicial effect.” According to appellant, the photographs, which depicted Norris's injuries following his 1999 beating and the crime scene of that beating, “did not solve any issue in the case, were highly inflammatory and should not have been admitted into evidence.” Appellant contends the trial court abused its discretion in impliedly finding the probative value of the photographs outweighed any prejudicial effect, “which in itself was harmful error as it denied Appellant a fair trial based on the issues and not from a prejudiced and emotionally influenced jury.” The State responds that appellant has inadequately briefed this issue because he does not apply the rule 403 analysis factors to the facts of this case. Further, the State argues, appellant does not explain how the trial court's admission of the photographs was an abuse of discretion. In addition, the State asserts the danger of unfair prejudice, if any, did not substantially outweigh the probative value of the photographs.
        Appellant contends the photographs were “meant to appeal to emotion rather than the fact finding process” and “had little, if any, probative value.” However, evidence of “an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act” may be deemed relevant to sentencing by the trial court. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). As stated above, the test for determining whether rule 403 prohibits the admission of relevant evidence involves balancing six factors. Gigliobianco, 210 S.W.3d at 641-42.         With regard to the first rule 403 factor, the inherent probative force of the evidence, the nineteen photographs at issue showed the nature of injuries and damage caused by appellant and others in 1999. Thus, the photographs were probative as to appellant's character and provided information to assist the jury in tailoring the appropriate sentence. See Erazo v. State, , 493 (Tex. Crim. App. 2004); Lamb v. State, 186 S.W.3d 136, 144 (Tex. App.-Houston [1st Dist.] 2005, no pet.).
        The second rule 403 factor focuses on the proponent's need for the evidence. See Gigliobianco, 210 S.W.3d at 641. Appellant asserts there was “no showing of special need” for the challenged photographs. However, the Texas Court of Criminal Appeals has stated, “Visual evidence accompanying testimony is most persuasive and often gives the fact finder a point of comparison against which to test the credibility of a witness and the validity of his conclusions.” Chamberlain v. State, , 237 (Tex. Crim. App. 1999).
        The third rule 403 factor is the tendency of the evidence to suggest decision on an improper basis. Gigliobianco, 210 S.W.3d at 641. In the context of the trial court's admission of photographs, we should consider: (1) the number of photographs, (2) the size of the photographs, (3) whether the photographs are in color or black and white, (4) the detail shown in the photographs, (5) whether the photographs are gruesome, (6) whether the body is naked or clothed, and (7) whether the body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to the appellant's detriment. Reese v. State, , 241 (Tex. Crim. App. 2000). As shown in the record, the nineteen photographs complained of measure nine inches by six inches and are in black and white.   See Footnote 3 Nine of the photographs show bruising and treated cuts on Norris's partially clothed body, including seven close-up shots of such injuries. The other ten photographs show property damage allegedly resulting from the incident. Appellant does not argue, and the record does not show, that the number of photographs admitted was excessive in this case. Cf. Shuffield v. State, , 786-88 (Tex. Crim. App. 2006) (twelve photographs of victim killed by shotgun blast admissible over defendant's objection); Newbury v. State, , 43-44 (Tex. Crim. App. 2004) (prejudicial value of thirteen photographs of murder victim did not outweigh probative value). Although photographs of bodily injuries might be considered by some to be “gruesome,” the photographs in this case depicted “nothing more than the reality of the brutal crime committed.” Chamberlain, 998 S.W.2d at 237. Nothing in the record suggests the gruesomeness of the photos had been enhanced in any way. “A trial court does not err merely because it admits into evidence photographs which are gruesome.” Id. (quoting Sonnier v. State, , 519 (Tex. Crim. App. 1995)). We conclude the photographs at issue, even if offered in color at trial, had little, if any, tendency to suggest decision on an improper basis. See Gigliobianco, 210 S.W.3d at 641.
        The fourth rule 403 factor focuses on any tendency of the evidence to confuse or distract the jury from the main issues. Id. As stated above, the probative value of the photographs at issue was based on their relevance in proving appellant's character, which, in turn, was relevant to the issue of punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). Thus, admission of the photographs during the punishment phase of trial could not have confused or distracted the jury from the main issues. See State v. Mechler, , 441 (Tex. Crim. App. 2005) (because results of breath test related directly to charged offense, evidence of results could not have distracted jury from main issues).
        The fifth rule 403 factor is 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. Gigliobianco, 210 S.W.3d at 641. In explaining this factor, the Giglibianco court stated, “For example, 'scientific' evidence might mislead a jury that is not properly equipped to judge the probative force of the evidence.” Id. The photographs at issue in this case did not involve “scientific” evidence or require scientific interpretation. Further, appellant does not argue, and the record does not show, that the jury in this case was not given adequate information with which to “evaluate the probative force” of the photographs. Id. at 643.
        Finally, the sixth rule 403 factor focuses on the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Id. at 641-42. The State introduced the photographs at issue through a police officer who provided background regarding the beating incident and identified appellant as one of the perpetrators. The evidentiary predicate for admission of the photographs spanned seven pages of the reporter's record. Then, the State used the photographs as visual aids to supplement Norris's testimony as he described the incident. Appellant does not assert, and we do not conclude, that the State expended unnecessary time to develop this evidence. See Ledbetter v. State, 208 S.W.3d 723, 735 (Tex. App.-Texarkana 2006, no pet.) (nine pages of testimony to develop and discuss photos not excessive). Further, the premise that visual evidence accompanying oral testimony is merely cumulative has been rejected by the Texas Court of Criminal Appeals. See Chamberlain, 998 S.W.2d at 237.
        We conclude the trial court could have reasonably concluded the probative value of the challenged photographs was not substantially outweighed by the countervailing factors specified in rule 403. See Tex. R. Evid. 403; Gigliobianco, 210 S.W.3d at 641-42. Accordingly, we conclude the trial court did not abuse its discretion in overruling appellant's objection to those photographs. We decide against appellant on his tenth issue.
V. CONCLUSION

        We decide appellant's fifteen issues against him. The trial court's judgments are affirmed.


                                                          ---------------------------------
                                                          DOUGLAS S. LANG
                                                          JUSTICE

070660F.U05
Do Not Publish
Tex. R. App. P. 47

Footnote 1 A prosecutor strikes at a defendant over the shoulder of his counsel when he refers to defense counsel personally and when his statement explicitly impugns defense counsel's character. Guy v. State, 160 S.W.3d 606, 617 (Tex. App.-Fort Worth 2005, pet. ref'd). Unless invited by the actions of defense counsel, a prosecutor may not strike at a defendant over the shoulder of his counsel. Id.
Footnote 2 In the argument section of his brief before this Court, appellant addresses his ninth issue as “Appellant's Issue No. 10" and addresses his tenth issue as “Appellant's Issue No. 9.” We refer to appellant's issues by the numbers under which they are presented in the table of contents to his appellate brief. See Tex. R. App. P. 38.1(b).
Footnote 3 Appellant asserts in his brief before this Court that the photographs were in color.

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