Affirmed as Reformed a nd Opinion Filed July 7, 2014 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-13-00704-CR MARK DAVID SMITH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Crimin al District Court No. 7 Dallas County, Texas Trial Court Cause No. F-11-11101-Y 

### MEMORANDUM OPINION Before Justices Bridges, Francis, and Lang-Miers Opinion by Justice Bridges Mark David Smith appeals his possession of methamphetamine conviction. The trial court convicted appellant, senten ced him to two years’ confinement, suspended the sentence, and placed appellant on probation for two years. In two issues, appellant argues the evidence is legally and factually insufficient to show he knowingly and intentionally possessed a controlled substance, and the State disproved the defens e of accident beyond a re asonable doubt. In a single cross-point, the State argue s the judgment should be reformed to show appellant entered a plea of “not guilty.” As reformed, we affirm the trial court’s judgment. On May 12, 2011, Addison police detective Jeff Douthit was called to a hotel where a man in a red shirt and khaki pants had tried to bo ok a room with a credit card number written on a piece of paper. Douthit arrived at the hotel about 11:45 p.m. and saw three men standing in the–2– parking lot, one of which matc hed the description he had been given. Douthit and another officer approached the men and spoke with them. Appellant, the man in the red shirt and khaki pants, appeared “very jittery” when Douthit was speaking with him. Appellant said his car broke down, and Douthit observed a woman in the car. Douthit asked appellant about trying to get a room with a credit card number on a piece of paper, and appellant said it was a phone number. While Douthit was speaking with the men, disp atch conducted a chec k on them, and it came back that appellant had an outstanding arrest warran t related to a traffic offense in Dallas County. Douthit placed appellant in handcuffs and placed hi m under arrest. In a sear ch incident to arrest, Douthit searched appellant’s pocke ts and located a clear plastic baggie containi ng a crystal-like substance that appeared to be a controlled substance. The substa nce turned out to be methamphetamine. Appellant was indicted on a ch arge of possession of methamphetamine in an amount less than one gram. At a subsequent trial before the court, R oger Gordy testified he was a former friend of appellant and had a criminal history including tw o “drug case[s]” from Fort Worth in 2005 and 2011. Gordy testified he had turned his life ar ound and had been working a little over seven months. On May 12, 2011, Gordy wa s at the hotel with appellant when police approached them. Gordy testified appellant had asked him to say that appellant was wearing Gordy’s clothing and that the drugs found on appellant belonged to Gor dy. Gordy testified appe llant was not wearing Gordy’s clothes, and the drugs did not belong to Gordy. On cr oss-examination, Gordy testified he was arrested for possession of methamphetamine two months before a ppellant’s arrest and two months after appellant’s arrest. On the day of appellant’s arrest, appellant had been helping Gordy “move some things” from a hotel to a house. Andrew Macey, a forensic scientist at the crime laboratory of the Texas Department of Public Safety, testified the drugs taken from appellant were .11 grams of methamphetamine.–3– Macey testified the methamphetamine was in a plastic Ziploc baggie measuring approximately two by four inches. Macey described the baggi e as “squishy, malleable” and testified it would “not necessarily” be immediately recognizable what the baggie was if it was in his pocket. Appellant’s wife, Joyce Smith, testified she did not recognize the clothes appellant was wearing at the time of his arrest. Smith testified she had never seen appellant use methamphetamine or any drug other than alcohol. Smith testified she had lived with appellant for five years at the time of trial, and she did not recognize the shirt he wa s wearing at the time of his arrest. Smith testified Gordy came to Sm ith’s residence after appellant’s arrest and apologized for getting appellant in trouble and said he would sign a statement the clothes were not appellant’s. However, Gor dy never signed such a statement. Appellant testified the clothes he was weari ng on the night of his a rrest did not belong to him. However, appellant did not testify how he came to be wearing someone else’s clothes. Appellant testified he was at the hotel because his truck broke down. Appellant called his father, who gave him a credit ca rd number, and appellant wrote th e number on a pie ce of paper. The hotel clerk refused to rent a room to appella nt, and the police showed up. Appellant testified that, after his arrest, Gordy said he wanted to apologize and was willing to sign an affidavit that the clothes appellant was wearing did not bel ong to him. On cross-examination, appellant testified he could not recall whether he told police at the scene of his arrest that the clothes he was wearing did not belong to him. Appellant tes tified he did not record his conversations with Gordy because they were “texting back and forth.” Appellant testified he did not have a text message where Gordy said “it was his drugs,” an d he did not have an affidavit signed by Gordy. Appellant testified he had no convictions or arrests for “dangerous drugs or controlled substances” and no “marijuana co nvictions.” However, appellan t testified he developed an addiction to alcohol in his “mid to late 20’s.” Appellant had a prior a rrest for “possession of–4– someone else’s credit card or identifying material .” Appellant described the arrest as stemming from his buying drinks at a motel in a room bel onging to an “out-of-town individual” and letting the motel assume he was the individual whose credit card was on the room. Appellant was “allowed to attend the House of Isaiah,” a re hab facility, following this arrest, and he successfully completed the program. Appella nt had “fallen off the wagon on one or two occasions” and “picked up a DWI” two years prior to trial. Appellant test ified he was still on probation at the time of trial, but he had “lived out” his felony deferred ad judication. The trial judge found appellant guilty of possession of methamphetamine, and this appeal followed. In his first issue, appellant challenges the sufficiency of the evidence to show he knowingly and intentionally possess ed a controlled substance. Th e only relevant standard when reviewing the sufficiency of the ev idence is the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). See Adames v. State , 353 S.W.3d 854, 859 (Tex. Crim . App. 2011). In determining the sufficiency of the evidence, an appellate cour t is to consider all evidence in the light most favorable to the verdict and determine whether any rational trier of f act could have found the essential elements of the crime beyond a reasonable doubt. Jackson , 443 U.S. at 319. We defer to the factfinder’s determinations of the witnesse s’ credibility and the weight to be given their testimony, because the factfinder is th e sole judge of those matters. Id. at 326. It is not necessary that the evidence direct ly prove the defendant’s guilt; circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). A defendant’s intent, in particular, may be in ferred from his words, acts, and conduct. Patrick v. State , 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). In other words, intent and knowledge are fact questions and are almost always proven through evidence–5– of the circumstances surrounding the crime. Robles v. State , 664 S.W.2d 91, 94 (Tex. Crim. App. 1984). A person commits an offense only if he volunt arily engages in conduct, including an act, an omission, or possession. T EX
. P ENAL C ODE A NN . §6.01(a) (West 2011). 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. Id. §6.01(b). A person acts intentionally, or with intent, with resp ect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Id. §6.03(a). A person acts knowi ngly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. Id. §6.03(b). A person act s knowingly, or with knowledge, with respect to a result of his c onduct when he is aware that his conduct is reasonably certain to cause the result. Id. Here, appellant testified the shorts he wa s wearing did not belong to him. Appellant testified the shorts belonged to Gordy, and Go rdy admitted to appellant the methamphetamine was his. Gordy testified the shorts did not belong to him, and the methamphetamine found in appellant’s pocket did not belong to Gordy. Gordy testified appell ant asked him to say appellant was wearing Gordy’s clothing and the drugs belonged to Gordy. Appellant did not deny wearing the shorts. Macey’s testimony that he coul d not immediately recognize what the baggie contained if it was in a pocket does not establis h appellant was unaware the baggie was in his pocket. Viewing all the evidence, we conclude a rational trier of fact c ould have found appellant knowingly and intentionally possessed th e methamphetamine in his pocket. See Jackson , 443 U.S. at 319. We overrule appellants’ first issue.–6– In his second issue, appellant argues the evidence is insufficient to prove appellant voluntarily possessed a controlled s ubstance, as opposed to possessi ng a controlled substance by accident. Under the current penal code, howev er, there is no “defense of accident.” Rogers v.
State , 105 S.W.3d 630, 637 (Tex. Crim. App. 2003). The no-voluntary-conduct aspect of that former defense is addressed by penal code sec tion 6.01(a), which provides that a person commits an offense only if he voluntar ily engages in conduct. Id. “Voluntariness,” within the meaning of section 6.01(a), refers only to one’s own physical body movements. Id. at 638. If those physical movements are the nonvolitional result of someone else’s ac t, are set in motion by some independent non-human force, are caused by a physical reflex or convulsion, or are the product of unconsciousness, hypnosis or other nonvolitional impetus, that movement is not voluntary. Id. The word “accident,” however, is a word of many meanings which covers a wide spectrum of possibilities. Id. It generally means “a happening that is not expected, foreseen, or intended.” Id. At least since the Court of Criminal Appeals’ opinion in Williams v. State , 630 S.W.2d 640, 644 (Tex. Crim. App. 1982), the word “accident” has not been used to refer to an “involuntary act” under section 6.01(a). Rogers , 105 S.W.3d at 639; see Rashann Maurice Brown v. State , 89 S.W.3d 630, 633 (Tex. Crim. App. 2002) (“the issue of the voluntar iness of one’s conduct, or bodily movements, is separate from the issue of one’s mental state”). Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed. T EX
. P ENAL C ODE A NN
. §6.01(b). To the extent appellant argues he did not knowingly possess the methamphetamine, we have already rejected that argument. We overrule appellant’s second issue. In a single cross point, the State argues we should reform the trial court’s judgment to reflect that appellant pleaded “not guilty.” Th e record shows appellant entered a plea of “not guilty.” This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information to do so. See T EX
. R. A PP
. P. 43.2(b); Bigley v.–7– State , 865 S.W.2d 26, 27-8 (Tex. Crim. App. 1993). Therefore, we modify the trial court’s judgment to reflect appellant en tered a plea of “not guilty.”

As reformed, we affirm the trial court’s judgment.

Do Not Publish T EX
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. P. 47 130704F.U05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–8– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARK DAVID SMITH, Appellant
No. 05-13-00704-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 7, Dallas County, Texas Trial Court Cause No. F-11-11101-Y. Opinion delivered by Justice Bridges. Justices Francis and Lang-Miers participating. Based on the Court’s opinion of this da te, the judgment of the trial court is MODIFIED as follows: Appellant's plea of "Guilty" is deleted, and a plea of "Not Guilty" is substituted. As REFORMED , the judgment is AFFIRMED

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Judgment entered July 7, 2014