Opinion filed November 5, 2009

In The

Eleventh Court of Appeals

__________

No. 11-07-00359-CR

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LARRY DALE SMITH, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR19032

M E M O R A N D U M O P I N I O N

Larry Dale Smith appeals his conviction by a jury for the offense of possession of

methamphetamine in an amount of one gram or more but less than four grams. The jury, having

found the allegations contained in an enhancement paragraph to be true, assessed his punishment at

twenty years confinement in the Texas Department of Criminal Justice, Institutional Division. Smith

contends in nine points on appeal that the evidence is legally and factually insufficient to support his

conviction (Points One, Two, Three, and Four); that the trial court erred in failing to instruct the jury

that, if he knowingly possessed the methamphetamine, such possession must have been voluntary

before it could find appellant guilty (Point Five); that the trial court erred by authorizing the jury to

convict him under the law of parties (Point Six); that the trial court’s charge violated his right to a

unanimous jury verdict under Article V, section 13 of the Texas Constitution and under the

provisions of the Texas Code of Criminal Procedure (Points Seven and Eight); and that the trial
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court’s charge authorized the jury to convict him without being convinced beyond a reasonable doubt

that he committed every element of the offense for which he was convicted (Point Nine). We affirm.

Smith contends in Points One, Two, Three, and Fourthat the evidence is legally and factually

insufficient to support his conviction. In order to determine if the evidence is legally sufficient, the

appellate court reviews all of the evidence in the light most favorable to the verdict and determines

whether any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To determine if the evidence is

factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State,

204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477

(Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v.

State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.

Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict

is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against

the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15;

Johnson, 23 S.W.3d at 10-11.

Lieutenant John C. Harper of the Brownwood Police Department testified that he sought to

stop a car with a driver and two passengers for a minor traffic violation but that the driver did not

stop when he sought to pull over the vehicle. He said that, during his chase of the vehicle, just after

the vehicle had made a left turn onto Washington, he saw something white thrown from the right

front window of the vehicle. He indicated that it went onto the embankment there. He stated that

he requested Officer Bryan Keith to secure the area until a search for the object could be conducted.

Lieutenant Harper testified that, at the conclusion of the chase, the driver left the car and went

over a barbed wire fence into a field off to the left. He identified the driver of the vehicle as Larry

Dale Smith and the passengers as Clayton Seale and Joshua Smith, the son of Larry Dale Smith.

Lieutenant Harper revealed that, when Seale was searched, officers found a spiral notebook with

“interesting” writings. He said the notebook contained a number of measurements, which he

recognized as portions. He indicated that it also contained items descriptive of terms used in drug

manufacturing or drug use.

Lieutenant Harper testified that from “Deputy Varner” he received a Crown Royal bag that

held a set of electronic scales and two photographs. He related that, after meeting Officer Keith of

the Brownwood Police Department at the rock area just behind the containment wall near the
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intersection of Vine and Washington Streets, Officer Keith found a Carmex container for lip balm

containing a substance he believed to be methamphetamine, based upon his training and experience.

On recross-examination, Lieutenant Harper testified that, while Smith did not own the

vehicle in question, as the driver, he was in control of it. He acknowledged that the statements that

he took from Seale and Smith’s son were inconsistent, so that one of them was lying.

Bruce Spruill testified that he is a police officer with the City of Brownwood, working as a

detective assigned to narcotics. He identified a Carmex jar containing methamphetamine. He said

he placed it in a plastic bag, along with his initials and the date he placed it in the bag. He

acknowledged that he was unable to obtain a fingerprint from the Carmex jar. Detective Spruill

indicated that a person’s knowledge and familiarity with the person’s background, particularly as it

might pertain to drugs, is important in determining knowledge of what might be possessed. He said

that whether one is under the influence of drugs is another factor in making that determination.

David Varner testified that he is a patrol officer with the Brown County Sheriff’s

Department. He indicated that he assisted in the pursuit of the vehicle involved in this case. He

related that he used a detector dog, Izzy, and that he had been trained in handling such dogs. He

stated that the dog had been trained to detect methamphetamine, heroin, cocaine, and marihuana.

He said that Izzy was an aggressive alerter, which means that, if she smelled the odor of narcotics,

she would bark, bite, and scratch to try to get to the odor to let one know where it was.

DeputyVarner testified that Izzy aggressively alerted to the driver’s seat and glove box of the vehicle

involved in this case. Deputy Varner acknowledged that he was not able to find any actual substance

in the area of the driver’s seat. He stated that Deputy Pete Bastardo located a Crown Royal bag in

the glove compartment, which contained a set of digital scales. He indicated there was a white

powdery residue on the scales. He identified State’s Exhibits 14-A, 14-A-1, 14-A-2, and 14-A-3 as

the bag and its contents. He later acknowledged that he had no reason to believe that Smith used the

vehicle often. He also acknowledged that he had no way of knowing when any controlled substance

would have been located on the driver’s seat.

Clayton Wayne Seale testified that he was serving a fifteen-year sentence in the state

penitentiary for possession of a controlled substance. He admitted to having possessed, sold, and

manufactured drugs. He said that he knew Smith and that he would go over to Smith’s house and

do drugs. He indicated that Smith knew he had drugs for sale from time to time. He related that
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Smith made it possible for him to sell drugs by introducing him to people he did not know who

wanted to buy drugs.

Seale testified that on the morning of December 17, 2006, he and his uncle left his place and

went to Brownwood where Seale was going shopping for Sudafed pills, the base component in the

manufacture of methamphetamine. He said the car they went in belonged to his grandpa. He

indicated that he went to Smith’s house, taking with him a tackle box containing scales, syringes,

drugs, and “whatnot.”

Seale testified that he and Smith were going to go look at a pickup that was for sale. He

indicated that he and Smith used methamphetamine before leaving the apartment. He said that Smith

was driving when a police officer attempted to stop him. He related that Smith said he had a warrant

and did not want to go back to prison.

Seale testified that, as they attempted to elude the police, he threw drugs out the window.

He said that, during the chase, Smith pulled out a syringe loaded with drugs and tried to inject

himself with it. He indicated that he persuaded Smith not to do that but that Smith squirted the drugs

in his mouth instead. He stated that Smith threw the syringe out the driver’s side window after

squirting its contents into his mouth. Seale testified that he did not believe Smith ever threw

anything out the passenger’s side window.

Seale identified State’s Exhibit 13-A as a Carmex container that belonged to him. He said

it was one of the objects he threw from the car. He acknowledged that it contained

methamphetamine. He stated that it probably contained about three or four grams. He

acknowledged that he had possession of a lot of drugs that day.

Seale testified that he had loaned the scales found in the Crown Royal bag to his uncle. He

said that he did not put the scales in the Crown Royal bag. He identified a notebook as one

containing his drug writings. He indicated that he got the notebook back from Smith, who had it for

a period of time. On cross-examination, Seale acknowledged that, even if Smith might have

suspected that he possessed drugs at the time of the chase, he would not have known about the drugs

in the Carmex container because they did not come out until after the chase was underway. He also

acknowledged that he had no reason to believe that Smith had used his notebook with the drug

writings for anything or that Smith even knew that it had been at his house. On redirect examination,

Seale testified that earlier in the day there was no doubt that Smith knew Seale had drugs.
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Joshua Smith, son of Larry Dale Smith, testified that he had used methamphetamine since

he was fifteen. He said that he remembered Seale throwing something out the window during the

chase but that he did not recall what it was. He recalled that once or twice he heard his father say

something about, “You ain’t got nothing on you, you better make sure you got everything off of you

if you do.” While he said he never heard his father tell Seale to get rid of all of his drugs, he

indicated that it was pretty clear that he was saying he wanted Seale to get rid of drugs that he had

on him. He recalled that he saw Seale move a Crown Royal bag from the floorboard to the glove

box. Joshua insisted that it was he, not his father, who threw a syringe filled with methamphetamine

out the window during the chase. He said he did not have any reason to believe that his father would

have known there were any particular drugs in the car at that time. He said his father told Seale, “If

you have anything, get rid of it.”

Sam Moss testified that he is an assistant district attorney for the 35th District. He indicated

that, contrary to his testimony at trial, Joshua had told him and Micheal Murray, the District

Attorney, that he, his father, and Seale had all used drugs together. He related that Joshua told them

the drugs came from Seale’s tackle box. Moss also related that, contrary to his testimony at trial,

Joshua had said that his father was really messed up, had been up for seven days, and was “just

wired.” Moss said he also recalled that Joshua had said that his father was saying to Seale during

the chase, “Hey, have you got rid of everything? Did you get rid of all of the stuff?” He indicated

that Joshua, during their interview, said he never saw anything get thrown from the car. He related

that Joshua had specifically denied he had been in possession of anything.

In a written statement, Seale said that he believed that Smith had thrown the Carmex jar out

the window and that Smith had also thrown a freezer bag out of the car. He indicated that he was

unaware of the illegal substances possessed by Smith during the pursuit. He also insisted that he had

“pilfered” the drug notebook from Smith. We hold that the evidence is legally and factually

sufficient to support the conviction.

As we have noted, Seale, in his original statement to the police, indicated that it was Smith,

not he, who possessed the drug in question in this case. While Smith places great emphasis on

Seale’s recanting of that original statement, the jury was not required to accept the recanted version.

Smith’s statement constitutes direct evidence that Smith was in possession of the drugs alleged. It

linked Smith to those drugs and showed more than his mere presence or proximity to them.
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We would also note that the charge authorized Smith’s conviction as a party, so that if it were

Seale, not Smith, who possessed the methamphetamine, there was evidence that Smith aided him

with respect to that possession by attempting to evade capture by the police and by urging him to get

rid of the drugs during the police chase. While there was evidence that Smith was evading the police

due to an outstanding warrant, the jury could have reasonably inferred from the evidence that he was

doing so because of the drugs that were in the vehicle. 

Smith argues under these points that the accomplice witness evidence is insufficiently

corroborated as required by TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005). However,

uncorroborated accomplice witness testimony can be sufficient to support a conviction under legal

and factual sufficiency standards. Barnes v. State, 62 S.W.3d 288, 300 (Tex. App.—Austin 2001,

pet. ref’d). Nevertheless, under state statutory law, if the prosecution fails to produce nonaccomplice testimony tending to connect the defendant with the commission of the offense charged,

then the accused is entitled to an acquittal on appeal. Id. The test as to the sufficiency of

corroboration of the accomplice witness is to eliminate from consideration the evidence of the

accomplice witness and then to examine the evidence of the non-accomplice witnesses with the view

to ascertain if there be evidence of an incriminating character that tends to connect the defendant

with the commission of the offense. Id. It is not necessary that the corroborating evidence directly

connect the defendant to the crime or that it be sufficient by itself to establish guilt. Id. at 300-01.

Lieutenant Harper testified that, after the arrest, Smith was sweaty and his hair very

disheveled. He said that, when he tried to speak to him, all he got was what he referred to as “a

thousand-yard stare.” He indicated that, based upon his experience and the absence of the smell of

alcohol, he was of the opinion that Smith was under the influence of an intoxicating substance other

than alcohol. Lieutenant Harper also recalled that Smith’s appearance had changed dramatically

from when he had known him previously. He specifically referred to the wild disheveled look of

Smith’s hair and the fact that he was a lot slimmer. He said that he had seen similar changes in

appearance among methamphetamine users because methamphetamine use causes a dramatic weight

loss. In our opinion, the evidence indicating that Smith was using methamphetamine and his effort

to evade police constitute evidence tending to connect Smith with the commission of the offense.

Smith contends that the evidence is insufficient to show that he voluntarily possessed the drug in

question, but the evidence of his methamphetamine use and the evidence that he possessed the
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Carmex jar containing the drugs are sufficient to show that he possessed the drug voluntarily. We

overrule Points One, Two, Three, and Four.

Smith asserts in Point Five that the trial court erred in failing to instruct the jury that, if he

knowingly possessed the methamphetamine, such possession must have been voluntary before it

could find him guilty. Smith was charged with knowingly possessing methamphetamine. The

court’s charge defined “possession” and then stated, “Possession is a voluntary act if the possessor

knowingly obtains or receives the thing possessed or is aware of his control of the thing for a

sufficient time to permit him to terminate his control.” In the application paragraph of the court’s

charge, the court required the jury to find that Smith knowingly possessed a controlled substance but

made no reference to a requirement that his possession must be voluntary. Smith made no request

for such an instruction as part of the application paragraph, nor did he make any objection to its

omission. There is no evidence in the record that, if he possessed the methamphetamine personally,

he did so involuntarily, nor that, if he assisted others in the possession of the methamphetamine, he

did so involuntarily. Inasmuch as the issue of voluntariness was not raised by the evidence, there

was no error in failing to include it in the charge.

Smith contends that the issue of voluntariness was raised by evidence that Seale testified that

Smith knew nothing about the drugs that he had in his possession until the chase was underway and

that Smith then asked him to get rid of them. As outlined in the State’s argument, the State was

basing its case either on Smith’s personal possession of the methamphetamine in the Carmex jar or

on the basis that he was aiding Seale in Seale’s possession of the methamphetamine in the Carmex

jar. Smith’s contention that the issue of voluntariness was raised is based on the assumption that the

State was seeking to convict him for possessing the methamphetamine possessed by Seale, other than

as a party. Because the State was not seeking to convict Smith directly for the possession of

methamphetamine that was solely in the possession of Seale, if there were any error in the charge

for failing to include an instruction on voluntary possession in the application portion of the charge,

the error did not cause egregious harm. We overrule Point Five.

Smith contends in Point Six that the trial court erred in authorizing the jury to convict him

under the law of parties because the evidence did not support it. We have previously noted that there

was evidence to support Smith’s conviction under the law of parties, noting evidence that he aided

Seale in his possession of the methamphetamine by evading the police and instructing Seale to get

rid of the drugs during the police chase. Smith correctly notes that there was evidence that he was
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evading police because of an outstanding warrant; however, under the evidence, a reasonable jury

could conclude that he was also doing so in an effort either to get rid of the drugs in his possession

or to allow the others in possession to get rid of theirs. He also suggests that his evasion of the

police was not conduct that aided Seale in his possession of the drugs, relying on Scott v. State, 946

S.W.2d 166, 168 (Tex. App.—Austin 1997, pet. ref’d). We find Scott to be distinguishable. In

Scott, evidence showed that Scott was the driver of the getaway car after a robbery committed by

some of his companions. Id. at 168-69. The court’s charge required that the jury, in order to convict

Scott, must find beyond a reasonable doubt that Scott entered into an agreement and conspiracy with

his codefendants to commit the offense of robbery; that one or more of the codefendants committed

the robbery; that, after the codefendants committed the robbery, Scott, pursuant to the agreement,

aided as a party by driving the getaway car; and that such offense was committed in the furtherance

of the unlawful purpose to commit robbery. Id. at 167. The court reversed Scott’s conviction

because it concluded that the evidence was insufficient to show that, before Scott’s codefendants

committed the robbery, Scott entered into a conspiracy and agreed to become a party to aid in the

robbery by driving the getaway car. Id. at 170. In the case at bar, the State was not required to show

that Smith entered into a conspiracy in which he agreed to become a party to aid in the possession

of drugs by driving to evade police.

Smith also places some reliance on the court’s opinion in Pesina v. State, 949 S.W.2d 374

(Tex. App.—San Antonio 1997, no pet.). We also find that opinion to be distinguishable. In Pesina,

the defendant was convicted of murder as a party for actions that he took after the murder had been

completed. The court reversed his conviction, holding that one’s acts committed after the offense

is completed cannot make him a party to the offense. Id. at 384. In the case at bar, any action taken

by Smith to assist Seale in the possession of methamphetamine was taken while Seale was in

possession of the methamphetamine, not when he was no longer in possession of it. We overrule

Point Six.

Smith insists in Points Seven, Eight, and Nine that the trial court’s charge violated his right

to a unanimous jury verdict under Article V, section 13 of the Texas Constitution and under the

provisions of the Texas Code of Criminal Procedure and authorized the jury to convict him without

being convinced beyond a reasonable doubt that he committed every element of the offense. The

charge instructed the jury that, if it found beyond a reasonable doubt that Smith was guilty of either

possession of a controlled substance with intent to deliver or possession of a controlled substance
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

1

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in an amount of one gram or more but less than four grams, it must resolve the doubt in the

defendant’s favor and find him guilty of the lesser included offense of possession of a controlled

substance in an amount of one gram or more but less than four grams. In suggesting that this portion

authorized the conviction for an offense without the jury being unanimous, he overlooks the fact that,

if the jury is undecided as noted in this section it is, of necessity, unanimous in its belief that Smith

has committed the essential elements of the offense of possession of a controlled substance in the

amount of one gram or more but less than four grams. In other words, although the jury might have

been undecided as to whether Smith had the intent to deliver, the jury was unanimous that he had

committed the essential elements of, and was therefore guilty of, the offense of possession of a

controlled substance in an amount of one gram or more but less than four grams. Again, because

under the court’s charge, the jury, in order to convict Smith of the offense of possession of a

controlled substance in the amount of one gram or more but less than four grams, would have had

to be in agreement beyond a reasonable doubt that Smith had committed the essential elements of

the offense of possession, his claim that substantive due process would prevent his conviction

because the State was required to prove that he committed every element of the offense for which

he was convicted must fail. We overrule Points Seven, Eight, and Nine. 

The judgment is affirmed.

PER CURIAM

November 5, 2009

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Hill, J.1