1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-12-00268-CR

____________________

JASON CLARK LARA, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 435th District Court 

Montgomery County, Texas

Trial Cause No. 11-11-12713-CR 

________________________________________________________ _____________

OPINION 

A jury convicted Jason Clark Lara of possession of marijuana, enhanced, 

and sentenced Lara to six years in prison. In one appellate issue, Lara challenges 

the trial court’s denial of his request for a jury instruction on a defensive issue. We 

affirm the trial court’s judgment. 

At trial, officers testified that they received a tip that marijuana was being 

used, sold, and grown by “Clark Lara” at a particular property. Officers found Lara 

inside a residence on the property. A search of the residence led to the discovery of 
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drug paraphernalia and marijuana. One officer testified that he smelled marijuana

inside the residence. Nancy Archer, Lara’s girlfriend, testified that she was in 

possession of the marijuana and she did not know Lara was inside the residence. 

Officers arrested Lara and Archer for possession of marijuana. An assistant district 

attorney testified that, at a bond hearing, Lara stated, “They took my marijuana”

and “I smoke marijuana, that’s why I had it.” 

At the jury charge conference, defense counsel asked the trial court to 

include a statement in the charge that presence alone is insufficient to justify a 

finding of possession. The trial court denied this request. On appeal, Lara contends 

that mere presence is a defensive issue and he was entitled to a jury instruction 

stating that presence alone is insufficient to establish possession. 

Mere presence at the location where drugs are found is insufficient, standing 

alone, to establish actual care, custody, or control of those drugs. Evans v. State, 

202 S.W.3d 158, 162 (Tex. Crim. App. 2006). A trial court does not err, however,

by denying a defendant’s requested jury instruction when the instruction is an 

affirmative submission of a defensive issue which merely denies the existence of 

an essential element of the State’s case, such as an instruction on “mere presence.”

See Green v. State, 566 S.W.2d 578, 584 (Tex. Crim. App. 1978); Goodrich v. 

State, 156 S.W.3d 141, 147 (Tex. App.—Dallas 2005, pet. ref’d); Williams v. 

State, 906 S.W.2d 58, 64 (Tex. App.—Tyler 1995, pet. ref’d); Green v. State, 880 
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S.W.2d 797, 802 (Tex. App.—Houston [1st Dist.] 1994, no pet.). Lara’s request for 

an instruction on “mere presence” sought to submit a defensive issue that merely 

denied an essential element of the State’s case, i.e., Lara’s care, custody, or control

of the marijuana. See Tex. Health & Safety Code Ann. § 481.121(a) (West 2010); 

see also Tex. Penal Code Ann. § 1.07(a)(39) (West Supp. 2012).1 Lara was not 

entitled to such an instruction and the trial court properly denied his request.2 See 

Green, 566 S.W.2d at 584; see also Goodrich, 156 S.W.3d at 147; Williams, 906 

S.W.2d at 64; Green, 880 S.W.2d at 802. We overrule Lara’s sole issue and affirm 

the trial court’s judgment.

AFFIRMED.

 ______________________________

STEVE McKEITHEN

 Chief Justice

Submitted on April 25, 2013

Opinion Delivered May 8, 2013

Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.

 1

Because the amendments to section 1.07(a) are not material to the issue in 

this appeal, we cite the current version of the statute. 

2

This case does not involve the issue of a defendant’s entitlement to an 

instruction on “mere presence” in situations involving accomplice witness

testimony. See Golden v. State, 851 S.W.2d 291, 294-95 (Tex. Crim. App. 1993) 

(“[A]ppellant’s request was not seeking the submission of an instruction on a 

defensive theory which merely negated an element of the offense, but rather sought 

an explanation of the legal requirement of corroboration of accomplice witness 

testimony.”).