Opinion filed No vember 5, 2009



### In The 

# Eleven th Court of Appeals

__________ 

### No. 1 1- 07 -0 03 59 -CR

____ ____ LARRY DA LE SM ITH, Ap pellant

V. STA TE OF TEX AS , A ppellee

On App eal from the 35th Distric t Court Brown County, Texas Trial Court Cause No. CR 19032

M E M O R

A N D U M O P I N I O N L arr y Dale Smith appea ls his convict i o n b y a jury for the of

fense of possession of methamphetamine in a

n amount of one g ram or mor e but less than four g rams. The jur y , having found the alleg ations contained in an enha nceme nt para g raph to be true, a ssessed his punishment at tw e nt y ye a r s c o nf ine me nt i n th e Te xas D e pa rtme nt o f C ri min a l Just ic e , Ins tit uti on a l D ivi sio n. Smith

c on te nd s in

nin e po int s o n a

pp e a l th a t th e e vid e nc e is l e g a lly and fa c tua lly ins uf

fi c ie nt t o s up po rt

his conviction (Points One, Two, Thr ee, a nd Four ); that the trial cour t erre d in failing to instruct the jury that, if he knowing ly possessed the methamphetamine, such possession must have bee n voluntary be fo re it c ou ld f

ind a pp e lla nt guil ty (P oin t F ive ); that the tr ia l c ourt e rr e d b y a uth or izin g the jur

y to convict him under the law of pa rties (Point Six ); that the trial court’s char g e violated his rig ht to a unanimous jury

verdic t under Ar

ticle V, sec tion 13 of the Texas Consti tution an d u n der the prov is io n s o f th e T e xa s Co d e o f Cr im in a l Pr o c e d u r e ( Po in ts Se v e n an d E ig h t) ; an d th a t th e trial2

court’s c h a

r g e a uthorized the jury

to convict him without being c onvinced be y ond a re asonable doubt that he c omm itt e d e ve ry

e le me nt o f t

he of fe ns e fo r w hic h h e wa s c on vic te d ( Poi nt N ine ). We a ff ir m. Smith c on te nd s in Point s One , Two , Thr e e , an d Fo ur that the e vid e nc e is le g a lly and fa c tua lly insufficient to support his c onviction. I n order to de termine if the evidenc e is le g ally sufficie nt, the appellate court reviews a ll of the evidenc e in the lig ht most favorable to the verdic t and deter mines whether any rational trier

of fa ct could have found the e ssential ele m en t s of the c rime beyond a

rea sonable doubt. J

ac k so n v . V irg ini a , 443 U. S. 307 , 319 (1 97 9) . T o d e te rm ine if the e vid e nc e is fac tually sufficie nt, the appellate court re views all of the evidenc e in a neutra l light. W ats on v . S tat e , 20 4 S. W.3 d 404 , 414 (T e x. Cr im. Ap p. 20 06 ) ( ov e rr uli ngin p art Zun iga v . S

tat e , 144 S.W .3d 477 (T e x. Cr im . Ap p. 20 04 )) ; J oh ns on v . S

tat e , 2 3 S. W.3 d 1 , 1 0- 11 (T e x. Cr im. Ap p. 20 00 ); Cain v. Sta te , 95 8 S.W. 2d 40 4, 40 7- 08 (T e x. Cr im. Ap p. 19 97 ); Cle wis v . S tat e , 9 2 2 S. W. 2 d

1 2 6 , 1 2 9 ( T e x. Crim. App. 1996). Then, the re viewing court de termines whe ther the e vidence supporting the verdic t is s o we a k tha t the ve rd ic t is c le arl y wr on g and manif e stl y un jus t or w he the r t

he ve rd ic t is a g a ins t th e g r e a t w e ig h t a

n d p r e p o n d e r an c e o f

th e c o n f li c ti n g e v id e n c e. W

atson , 204 S.W .3d at 414-15; Johnson , 23 S.W .3d at 10-11. L ie ute na nt Joh n C. Ha

rp e r o f t he B ro wnwo od

Pol ic e De pa

rtme nt te sti fi e d tha t he so ug ht t o stop a car with a driver

and two passe ng ers f

or a minor tra ffic violation but that the drive r did not stop when he soug ht to pull ove r the vehicle . He sa id that, during his chase of the vehicle , just after the vehicle had made a lef t turn onto W ashing ton, he saw somethingwhite thrown fr om the rig ht front window of t he vehicle. He indicated t hat i t went onto the embankment there. H e stated that he re quested Of

fice r B ry an Ke ith to secur e the a rea until a searc h for the obje ct could be c onducted. L ieutenant Ha

rper testified that, at the conclusion of the chase , the driver left the c ar a

nd went

over a barbe d wire fenc e into a field off to the left. He identified the driver of the vehicle as L arr y Dale Smith and the passe ng ers a s Clay ton Seale and Joshua Smit h, t h e son of L arr y Dale Smith. L ie ute na nt H arp e r r e ve a le d th a t, wh en S eal e wa s se arc he d, of fi c e rs fo un d a

sp ir a l no te bo ok

wi th “intere sting” writing s. He said the note book conta i n ed a number of mea surements, whic h he

rec og nized as portions. He indicate d that it also containe d items descriptive of te rms used in drug manufa cturing or druguse. L ieutenant Ha

rper testified that from “ Deputy Var ner” he rece ived a Crown Roy al bagthat held a set of ele ctronic sc ales a nd two photogr aphs. He related that, af ter mee ting Of

fice r Ke ith of the B rownwood Police D epar tment at t h e ro ck ar ea just behind the c ontainment wall nea r the3

int e rs e c tio n o f V ine and

Was hin g ton

Str e e ts, Of

fi c e r K e ithfo un d a

Carm e x co nta ine r f

or lip ba lm containing a substance he believed to be methamphetamine, based upon his tra ining a nd experience

. On re cross-e x amination, L ieutenant Ha rper testified that, while Smith did not own the vehicle in que stion, as the driver, he was in c ontrol of it. He a cknowledg ed that the state ments that h e t o o k fr o m S ea l e a n d

S m i t h ’s s o nwe re i n co n s i s t en t , s o t h at o n e o f t h em wa s l y i n g. B ru c e Spr uil l te sti fi e d th a t he is a po lic e of fi c e r wi th the City of B ro wnwo od , w or kin g a s a de te c tiv e a ssi g ne d to na

rc oti c s. He ide nti fi e d a

Carm e x jar

c on ta ini ngme tha

mph e tamin e . H e sa id he plac ed it in a plastic bag , along wi t h his init ials and the date he plac ed it in the bag . He

a c kn ow le dg e d th a t he wa s una ble to o bta in a

fi ng e rprin t fro m th e Carm e x jar . D e te c tiv e Spr uil l ind ic a te d th a t a

pe rs on ’s kn ow le dg e and

fa mil iari ty wi th t he pe rs on ’s ba c kg ro un d, pa rt ic ula rl y a s it mig ht p e rt a in t o d

ru g s, is i mpo rt ant i n d e te rm ini ngkn ow le dg e of wh a t mig ht be po sse sse d. He sa id that whether

one is under the influence of drug s is another fa ctor in making that deter mination. David Va

rner testified that he is a patrol office r with t h e Br own County Sheriff’ s Depa rtment. He indicated that he as s i sted in the pursuit of the vehic le involved in this case. He related that he use d a dete ctor dog , I zz y , and tha t he had be en tra ined in handling such dog s. He stated that the doghad bee n trained to de tect methamphe t am i n e, heroin, coca ine, and mar ihuana. He sa id t hat I zzy wa s an a g g re ssi ve a le rt e r, wh ic h me ans that, i f s he sme lle d the od or of na rc oti c s, sh e wo uld

ba rk , b ite , a

nd sc ratch to tr y to g e t to the od or to l e t on e kn owwh e re it w a s. De pu ty Va

rn e r te sti fi e d th a t I zzy

a g g re ssi ve ly

a le rt e d to the dr ive r’ s se a t and g lov e bo x of t

he ve hic le involved in this case. De puty Var ner a cknowledg ed that he w as not able to find a ny actua l substance in t he are a of the dr ive r’ s seat. He state d th a t D e pu ty Pe te B a sta

rd o lo c a te d a

Cr ow n Ro y a l ba g in the g lov e c omp artme nt, wh ic h c on ta ine d a se t of dig ita l sc a le s. He ind ica te d th e re wa s a wh ite powder y residue on the scale s. He identified State’ s Ex hibits 14-A, 14-A-1, 14-A-2, and 14-A -3 as the bagand its contents. He later a cknowledg ed that he ha d no rea son to believe that Smith used the vehicle of ten. He a lso acknowle dg ed that he had no way of knowing when a ny controlled substanc e
wo uld have be e n lo c a te d o n th e dr ive r’ s se a t. Cla y ton Way ne Se a le te sti fi e d th a t he wa s se rv ing a fi ft een- y e ar s e nte nc e in t he state pe n it e n ti ar

y f o r p o s s e s s io no f

a c o n tr o ll e d

s u b s ta n c e
. H e a d mi tt e d

to h a v in g p o s s e s s e d , s o ld , and manufa cture d drug s. He said that he knew Smit h and that he w ould go ove r to Smit h’s house a nd do drug s. He indicated th at S m ith knew he ha d drug s for sale from time to time. He re lated that4

Smit h ma d e it p o s s ib le f

o r h im to s e ll dr

u g s b y in tr o d

u c in g h im to p e o p le h e d id n o t know who

wa nte d to buy

dr ug s. Seale testified that on the morning of Decembe r 17, 2006, he and his uncle left his place and went to B rownwood w here Seale wa s g oing shoppingfor Sudaf ed pills, the base c omponent in the manufa cture of methamphe t am i n e. He said the ca r they went in belong ed to his g randpa . He ind ic a te d th a t he we nt to S mith’ s h ou se , ta kin g wi th h im a

ta c kle bo x co nta ini ngsc a le s, sy ri ng e s, drug s, and “w hatnot.” Seale testified t hat he a

nd Smit h wer e g oing to g o look at a pickup that wa s for sale . He ind ic a te d th a t he a

nd Smith u se d me tha

mph e tamin e be fo re le a vin g the a pa rtme nt. He sa id t

hat Smi th was drivingwhen a

police off icer attempted to stop him. He related that Smith s aid he had a wa rra nt and did not want to g o back to pr ison. Seale testified that, as they attempted to elude the poli ce , h e t h re w drug s out the window. He sa id that, during the cha se, Smith pul led out a sy ring e l o ad ed wi t h d rugs and trie d to inject h i m s el f w i t h i t

. He i n d i ca t ed t h at h e pe rs u ad ed S m i t h n o t t o d o t h at b u tt h at S m i t h s qu i rt edt h e d ru gs in his mout h instead. He sta t ed t h at S mith threw the sy ring e out the drive r’s side window a fter squirting its co n t en ts into hi s mouth. S eale testified that he did not believe Smit h ever threw any thing out the pa sseng er’ s side window. Se a le ide nti fi e d St a te ’s Exhi bit 13 -Aa s a

Carm e x co nta ine r t

hat be lon g e d to him . He sa id it was one of

th e o b je c ts h e thr e w f

r o m t h e c ar
. H e a c kn o w le d g e d th a t i t c o n ta in ed methamphetamine. H e stated that it probably contained a

bout three or four gr ams. He

a c kn o w l e d g e d

t h a th e h a d

p o s s e s s i o no f

a l o to f dr u g s t h a td ay. Seale testified that he had loane d the sca les found in the Crown Roy al bagto his uncle. He said that he did not put the scale s i n t h e C ro wn R oy al bag . He identifie d a notebook a s one containing his dr

ug writing s. He indicated that he g ot the notebook back from Smit h, who had it for a per iod of time. On cross- examination, S eale acknowl ed ged t h at , even if Smit h might have

s u s p ec t edt h at h e p o s s es s eddru gs at t h e t i m e o f t h e ch as e, h e wo u l d n o th av e k n o wn ab o u tt h e d ru gs in t he Carm e x co nta ine r b e c a us e the y did no t c ome ou t un til a ft e r the c ha se wa s un de rw ay
. He a lso ack n o wl ed ged that he had no r eason to be lieve that Smith had used his notebook with the drug writing s for a

ny thing or that Smit h even knew that it had be en at his house. On r edire ct examination, Se a le te sti fi e d th a t e arl ie r i n th e da y the re wa s n o d ou

bt t hat Smi th k

ne w Se a le ha d d

ru g s.5

J oshua Smith, son of L arr y Dale Smit h, testified that he ha d used methamphe tamine since he was fiftee n. He said that he reme mbere d Seale throwing something out the window during the chase but that he did not rec all what it wa s. He r eca lled that once or twice he hear d his father say something a

bout, “You ain’ t got nothing on y ou, y ou better make sure you g ot ever y thing of f of y ou if y ou do.” While he said he ne ver he ard hi s fa t h er t ell Seale to g et rid of a ll of his drug s, he indicated that it was pr etty clea r t hat he was say ing he wanted Seale to g et rid of drugs that he had on him. He reca lled that he sawSeale move a Crown Roy al bagfrom the f loorboard to the g love box

. J oshua insisted that it was he, not his father, w ho threw a sy ring e filled with methamphe tamine

ou t th e wi nd ow duri ng the c ha se
. He sa id he did no t ha ve any re a so n to be lie ve tha

t hi s f a the r w ou ld h a v e kn o w n t h e r e w e r e a

n y p art i c u l ar dr

u g s i nt h e c ar

a tt h a tt i m e
. H e s a i d

h i s f a t h e r t o l d S e a l e , “ If y ou have a

ny thing, g et rid of it.” Sam Moss testified that he is an assistant district attorney for the 35th D istrict. He indicated that, contra

ry to his testim ony

at t ri al , J oshua had told him and Michea l Murray , the District Attorney , that he, his fathe r, and Seale had all used drugs togethe r. He r elated that J oshua told them the dr ug s c a me fr om S e a le ’s ta c kle bo x. Mo ss a lso re la te d th a t, c on tr ary to hi s testimo ny a t tr ia l, Joshu a ha d s a id t

hat hi s f a the r w a s r e a lly

me sse d u

p, had been up for seve n d ay s, and wa s “ jus t wired.” Moss said he also rec alled that J oshua had said that his fathe r was saying to Seale dur ing the cha se, “H ey , have you g ot rid of eve ry thing? Did y ou g et rid of a ll of the stuff? ” He indicated that J oshua, during their interview , said he never saw any thing g et thrown fr om the car . He r elated t h at J o s h u a h ads p ec i fi ca l l y d en i edh e h adb ee ni np o s s es s i o no f a n y t h i n g. I n a wr itten statement, Seale sa id that he believe d that Smit h had thrown the Carmex jar out the window and that Smit h had also thrown a fre ezer bag out of the ca r. He indicated that he was
unawa re of the illeg al substances possessed by Smit h during the pursuit. He also insisted that he had

“ pil fe re d” the dr

ugno te bo ok

fro m S mi th

. W e ho ld t hat th e e vid e nc e is l e g a lly and fa c tua lly sufficie nt to support the conviction. As we ha ve noted, Sea le, in his origina l statement to the police, indicate d that it was Smit h, not he, who possessed the drug in question in thi s case . Whil e Smith p l ac es gre at emphasis on Seale’ s rec anting of that orig inal statement, the jury was not re quired to ac cept the rec anted ve rsion. S m i t h ’ s s t a t e m e n tc o n s t i tu t e s d i r e c te v i d e n c e t h a tS m i t h w a s i n p o s s e s s i o n o f t h e dr u g s a l l e g e d

. It lin ke d Sm ithto t

ho se dr ug s and sh ow e d mo re tha

n h is m e re pr e se nc e or

pr oximi ty

to t he m.6

We would also note that the char g e authorized Smit h’s conviction as a party , so that if it were S eal e, not Sm ith , w ho po sse sse d th e me tha mph e tamin e , th e re wa s e vid e nc e that Smi th a ide d h im with respec t to that possession by attempting to e vade c apture by the police and by urg ing him to g et rid of the drug s during the pol ice chase. While there was e vidence that Smit h was e vading the police due to an outstanding war

rant, the jury

could have rea sonably

inferr ed fr om the evidenc e that he w as doing so be cause of the drug s that were in the vehicle. Smith a rgue s und e r t

he se po int s th at th e a c c omp lic e wi tne ss e vid e nc e is i ns uf fi c ie ntl y
c o r r o b o r a t e d a s r e qu i r e d

b y T EX
. C ODE C R IM
. P R OC
. ANN . art. 38.14 (V ernon 2005) . Howeve r,
uncorr oborate d acc omplice witness t estimony can be s ufficie nt to support a conviction under leg al and fa ctual suff

iciency standards. Ba rn es v . S tat e , 62 S.W .3d 288, 300 (Tex. App.—Austin 2001, pet. re f’d) . Neve rtheless , under state statutory law, if the pr osecution fa ils to produce nonacc omplice testimony

tending to connec t the defe ndant with the commission of the offe nse cha rg ed, t h en t h e ac cu s ed is entitled to an acquittal on appe al. Id

. T h e te s t a s to th e s u f f ic ie n c y of

corr oboration of the a ccomplice witness is to elimi nate f rom consider ation the evidenc e of the

acc omplice witness and then to e x amine the evidenc e of the non-ac complice witnesses with the view to a s c e rta in if th e r e b e e v id e n c e o f an in c r im in a ti n g c h ar a c te r th a t te n d s to c o n n e c t th e def endant with the commission of the offe nse. Id. I t is no t nec e ssa ry that th e c or

ro bo ra tin g e vid e nc e dir e c tly

connec t the defendant to the crime or t hat i t be suff icient by itself to establish guilt. Id. at 300-01

. L ieutenant Ha rp er testified that, after the ar rest, Smith was sweaty

and his hair ve ry disheveled. H e said that, whe n he tried to spea k to h im, all he g ot was what he re fer red to a s “a thousand-y ard star e.” He indicated that, based upon his e x perie nce and the absenc e of the smell of alcohol, he w as of the opinion that Smit h was under the influence of an intox icating substance othe r tha n a lc oh ol. L ie ute na

nt H arp e r a lso re c a lle d th a t Smi th’ s appea ra nc e ha d c ha

ng e d d ra ma tic a lly from whe n he had know n him previously . He speci fi ca l l y ref err ed to the wild dishevele d look of Smith’ s h a ir

and th e fact th at he wa s a lot sli mme r. He sa id t

hat he ha d s e e n s imi lar c ha ng e s in appea ranc e a m o n g m et h am p h et am i n e u s er s b ec au s e m et h am p h et am i n e u s e c au s es a d rama tic weight loss. In our opinion, the evidenc e indicating that Smit h was using methamphetamine and his eff ort to evade police constitute ev i dence tending to connec t Smi th with the commission of the offense

. Smith c on te nd s th at th e e vid e nc e is i ns uf fi c ie nt t o s ho w t

hat he vo lun tari ly po ss essed the dr ugin question, but the evidenc e of his methamphe tamine use a nd the evidenc e that he po s s essed the7

Ca r me x ja r c o n ta in in g th e dr

u g s ar e s u f

f ic ie n t t o s h o w th a t h e p o s s e s s e d th e dr u g v o lu n ta r il y
. We

overr ule Points One, Two, Thre e, and F our. Smit h asser

ts in Point Five that the trial court err ed in failing to instruct the jury that, if he kn ow ingly posse sse d th e me tha mph e tamin e , s uc h p os se ssi on mus t ha ve be e n v olu

nta ry be fo re it could find him g uilty . Smit h was c harg ed with k n o wi ng ly possessing me thamphetamine. The court’s c harg e def

ined “possession” a

nd then stated, “ Possession is a voluntary act if the possessor knowing ly

obtains or re ceive s the thing posse ssed or is awa re of his control o f t he thing for a sufficie nt time to permit him to terminate his control.” I n the applica tion parag raph of

the cour t’s char g e, the c ourt requir ed the jury to find that Smit h knowing ly possessed a c ontrolled substance but

ma de no re fe re nc e to a

re qu ir e me nt t

hat hi s po sse ssi on mus t be vo lun tary
. Smit h ma de no re qu e st fo r s uc h a n in str uc tio n a s p art

of the a pp lic a tio n p ara g ra

ph , n or did he make any

ob je c tio n to its

o m i s s i o n
. T h e r e i s n o e v i d e n c e i nt h e r e c o r d t h a t , i f h e p o s s e s s e d

t h e m e t h a mp h e t a m i n e p e r s o n a l l y, he did so involuntarily , nor t hat, i f he assisted others in t he possession of the me thamphetamine, he did so involunt arily . I nasmuch a s the issue of voluntarine ss was not raise d by the evidenc e, ther e
was no e rror

in failing to include it in the char g e. Smit h contends that the issue of voluntariness wa s raised by evidenc e that Seale testified that Smit h knew nothing about the drug s that he had in his possession until the chase w as under way and that Smit h then aske d him to get r id o f t h em
. As o utlined in the State’s argument, the State was basing its case e ither on S mith’s persona l possession of t he methamphetamine in the Carmex jar or on the basis that he was aiding Seale in Sea le’s possession of the me thamphetamine in the Car mex jar. S mith’s contention t hat t he is sue of voluntar iness was ra ised is based on the a ssumption t hat the State was see k in g

to c o nvict him for possessing the methamphetamine possessed by Seale, other

than as a pa rty . Be cause t h e S t at e was not seeking to c onvict Smit h direc tly for the posse ssion of

m et h am p h et am i n e t h at wa s s o l el y i nt h e p o s s es s i o no f S ea l e, i f t h er e w er e a n y erro r i nt h e c h ar ge for f ailing to include an instruction on voluntary possession in the application portion of the cha rg e, the er ror did not ca

use eg reg ious harm. We overr ule Point Five. Smith c on te nd s in

Poi nt S ix that th e tr ia l c ourt e rr e d in a uth or izin g the jur

y to c on vic t hi m under the law of parties because the evidence did not support it. We have pre viously noted that there

was e vidence to support Smi th’s conviction under the law of

parties, noting evidenc e that he a ided Seale in his possession of the methamphe tamine by evading the police and instructing Seale to g et rid of the dr

ug s during the police c hase. Smith corre ctly notes that there was e vidence that he wa s8

evadingpolice bec ause of an outstanding war

rant; howe ver, under the evidence , a re asonable jury could conc lude that he wa s also doing so in an eff ort either to g et rid of the dr ug s in his possession or to allow the other s in possession to get rid of t h ei rs
. He also sug g ests that his evasion of the police wa s not conduct that aide d Seale in his possession of the drug s, relying on Sc ott v . S tat e , 946 S.W .2d 166, 168 (Tex. App.—Aus t i n 1 9 9 7 , pet. re f’d) . We find Sc ott t o b e d i s t i n g u i s h a b l e
. In Sc ott , evidenc e showe d that Scott was the driver of the g etawa

y car afte r a r obbery

committed by some of his companions. Id

. at 168-69. The court’s char g e re quired that the jury , in order to c onvict Sc ott , mu st f

ind be y on d a re a so na ble do ub t th a t Sc ott e nte re d into an ag re e me nt an d c on sp ir a c y wi th his codefe ndants to commit the offense of robbe ry ; that one or more of the codef endants c ommitt ed the ro bb e ry ; th a t, a ft e r t

he c od e fe nd ants c ommit ted t he ro bb e ry , Sc ott , p ur su ant t o th e a g re e me nt, aided a s a par

ty by driving the g etawa

y car ; a nd that such offe nse was c ommitt ed in the fur thera nce of the unlaw ful purpose to c ommit robbery

. I d. at 1 6 7

. The c ourt reve rsed Scott’s convic tion be c a us e it c on c lud e d th at th e evi de nc e wa s in su ff ic ie nt t o s ho w t

hat, b e fo re Sc ott ’s c od e fe nd a nts committ ed t h e robbe ry , Scott entere d into a conspirac y and ag ree d to become a

party to aid in the robber y by driving the g etawa

y car
. Id. at 170. I n the case at bar, the State was not re quired to show that Smit h enter ed into a conspira cy in which he ag ree d to be come a party to aid in the possession of drug s by

driving to evade police. Smit h also place s some relianc e on the c ourt’s opinion in Pe sin a v . S tat e , 949 S.W .2d 374 (Tex. App.—San Antonio 1997, no pet.). We also find that opinion to be distinguishable. In Pesina , the def endant wa s convicted of

murder a s a par

ty for a ctions that he t ook afte r the murde r had be en
c omp le te d. Th e c ou

rt re ve rs e d his c on vic tio n, ho ldi ngthat on e ’s a c ts c omm itt e d a ft e r t he of fe ns e is completed ca

nnot make him a par

ty to the offe nse. Id. at 384. I n the ca se at bar , any action take n by Smith to a ssi st Se a le in t he po sse ssi on

of me tha mph e tamin e was take n w hil e Se a le wa s in po sse ssi on

of the me tha

mph e tamin e , n ot w he n h e wa s n o lo ng e r i n p os se ssi on of it. We o ve rr

ule Po in t S ix. Smit h insists in Point s Seven, Eig ht, and Nine that the tr ial court’s c harg e violated his rig ht to a una n i m o u s jury

verdic t under Ar

ticle V, sec tion 13 of the Texas Consti tution and under the provisions of the Texas Code of Criminal Procedur e and authorized the j ury to convict him without being convince d bey ond a re asonable doubt that h e co mmitt ed eve ry element of

the offe nse. The char g e instructed the jury that, if it f ound bey ond a rea sonable doubt that Smi th was g uilty of either possession of a c ontrolled substance with intent to deliver or possession of a c ontrolled substanceJohn G . H ill , For m er Just ic e, Cour

t of A ppea ls , 2nd D is tri ct

of T ex as a t For

t W orth, s itt ing by

a ss ig nm ent

. 1 9 in an amount of one gra m o r m o re b ut less than four g rams, it must resolve the doubt in the def endant’ s favor

and find him g uilty

of the lesse r included of fense of possession of a c ontrolled substance in a

n amount of one g ram or mor e but l ess t han four g rams. I n sug g esting that this portion

a uth or ize d th e c on vic tio n f or an o ff e ns e wi tho ut t

he jur y be ing un anim ou s, he ov e rl oo ks the fa c t th a t, if the jur y is und e c ide d as not e d in th is s e c tio n it is, of ne c e ssi ty , una

nim ou s in its be lie f t

hat Smi th has committed the esse ntial e lements of the of fense of possession of a c ontrolled substance in the amount of one g ram or more but le ss than four g rams. In other wor ds, althoug h the jury might have been unde cided a s to whether Smith had the intent to deliver, the jury was una nimous that he had committed the essential el em en t s o f, and wa s theref ore guilty of, the off

ense of possession of a

c on tr oll e d s ub sta

nc e in a n amou nt o f one gram o r m or e bu t le ss t ha n f our g ra ms. Ag a in, be c a

us e under the court’s c harg e, t h e j u ry , i n order to convict Smith of the offense of possession of a controlled substanc e in the amount of one g ram or mor e but less than four g rams, would have had to be in ag ree ment bey ond a rea sonable doubt that Smith ha d committed the essential ele ments of the offe nse of possession , h i s cl aim that substantive due proc ess would pre vent his conviction beca use the State wa s require d to pr ove that he committed e very element of the off ense f or which he wa s convicted must fa il. W e over rule Points Seven, Eig ht, and Nine. The judg ment is affirme d.

PER C URI AM

November

5, 2009 Do not publish. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: Wright, C.J ., M c C a l l , J. , an d

H i l l , J. 1