IN THE

TENTH COURT OF APPEALS

No. 10-07-00357-CR

STEPHEN ANDREW MASHBURN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2007-273-C2

MEMORANDUM OPINION

A jury convicted Stephen Andrew Mashburn of possessing between one and four 

grams of methamphetamine and, after he pleaded true to an enhancement allegation, 

assessed his punishment at twenty years’ imprisonment. Mashburn contends in two 

issues that: (1) the evidence is legally insufficient because the State failed to provide 

sufficient evidence to corroborate the testimony of his accomplice; and (2) the court 

abused its discretion by admitting evidence that he had possessed marihuana earlier on 

the day of his arrest. We will affirm.
Mashburn v. State Page 2

Corroboration of Accomplice Testimony

Mashburn contends in his first issue that the evidence is legally insufficient 

because the State failed to provide sufficient evidence to corroborate the testimony of 

his accomplice.

Although Mashburn states this issue in terms of “legal insufficiency,” his 

argument focuses on whether the State met the requirements of article 38.14 of the Code 

of Criminal Procedure. That statute provides, “A conviction cannot be had upon the 

testimony of an accomplice unless corroborated by other evidence tending to connect 

the defendant with the offense committed; and the corroboration is not sufficient if it 

merely shows the commission of the offense.” TEX. CODE CRIM. PROC. ANN. art. 38.14

(Vernon 2005). “This accomplice witness rule creates a statutorily imposed review and 

is not derived from federal or state constitutional principles that define the legal and 

factual sufficiency standards.” Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 

2007).

“When evaluating the sufficiency of corroboration evidence under the 

accomplice-witness rule, we ‘eliminate the accomplice testimony from consideration 

and then examine the remaining portions of the record to see if there is any evidence

that tends to connect the accused with the commission of the crime.’” Malone v. State, 

253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Solomon v. State, 49 S.W.3d 356, 361

(Tex. Crim. App. 2001)).
Mashburn v. State Page 3

Here, the accomplice Tuesday Wood and Mashburn were both indicted for 

possession of methamphetamine.1 A security officer detained them at a Bellmead WalMart for affixing fraudulent UPC2 labels to “high dollar” merchandise and purchasing 

the merchandise at a discounted price. In the front-passenger-door pocket of Wood’s 

car, police officers found a small plastic container and a small ziplock bag which 

together contained a little more than two grams of methamphetamine. They also 

recovered additional fraudulent UPC labels like the ones Mashburn and Wood were 

using inside the store. They arrested both for possession of methamphetamine.

Wood testified that her boyfriend had introduced her to Mashburn. They both 

lived in San Antonio. On the morning of the day they were arrested, Mashburn called 

and asked her to give him a ride to run several errands. When she arrived at his home, 

she noticed him putting a baggie of marihuana in his backpack. She told him not to 

bring any marihuana or other narcotics with him, and he left the marihuana at home.3 

After stopping at a couple of stores in San Antonio, he persuaded her to drive to a 

gameroom in San Marcos. There they played eight-liner machines and won about $700. 

Wood went out to her car to get more cash at one point and noticed what appeared to 

 

1 Thus, it is undisputed that Wood was an accomplice as a matter of law. Herron v. State, 86 S.W.3d 

621, 631 (Tex. Crim. App. 2002).

2 The term “UPC” refers to the universal product code affixed to most merchandise. See Jahanian v. 

State, 145 S.W.3d 346, 348 (Tex. App.—Houston [14th Dist.] 2004, no pet.); see also TEX. PEN. CODE ANN. § 

32.47(a), (b)(4) (Vernon 2003) (making it a crime to fraudulently destroy, remove, conceal, etc. a universal 

product code); MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1293 (10th ed. 1993) (defining “Universal 

Product Code” as “a combination of a bar code and numbers by which a scanner can identify a product 

and usu. assign a price”).

3 Wood explained that she told him not to bring any narcotics along because she knew she was 

wanted for a forgery charge in San Antonio and did not want to take any chances.
Mashburn v. State Page 4

be methamphetamine in the front-passenger-door pocket. When she confronted him 

about this, he admitted that this was his but assured her that it was just “cut,” which 

she explained to be material added to narcotics to increase bulk.

Wood testified that Mashburn convinced her to drive him northward on 

Interstate 35 to stop at various Wal-Marts so he could affix forged UPC labels to 

merchandise and purchase the merchandise at a reduced price. She explained that he 

would then return this merchandise without a receipt and receive a refund in the form 

of a Wal-Mart gift card for the originally marked price. According to Wood, she did not 

accompany Mashburn into any of the Wal-Marts along the way until they stopped at 

the Bellmead Wal-Mart. She asked him not to switch any UPC labels at this store 

because of her fears concerning the pending forgery charge.

Bellmead Police Officer Jerry Motley searched Wood’s car pursuant to a search 

warrant. He testified that a Wal-Mart surveillance video depicted Wood exiting from 

the driver’s side of the car and a male exiting from the passenger’s side before they 

entered the store. He could not identify Mashburn in court as the male depicted in the 

video. The search of the car disclosed numerous UPC labels similar to those Mashburn 

was using and a label machine capable of printing such labels. There was a backpack in 

the center of the backseat which contained, among other things, a butane torch, 

additional UPC labels, a hairbrush with strands of dark hair similar in color to 

Mashburn’s,4 and a piece of paper with Mashburn’s name and address. Motley testified 

that methamphetamine users frequently place the substance on a piece of foil or other 

 

4 Wood testified that she has strawberry blonde hair and has never had dark-colored hair.
Mashburn v. State Page 5

lightweight metal and use a torch like that found in the backpack to warm the metal 

then inhale the fumes. Additional UPC labels were found in the door pocket where the 

methamphetamine was located.

The non-accomplice evidence tending to connect Mashburn to the 

methamphetamine includes: (1) the surveillance video indicating that a male was in the 

front passenger seat of Wood’s car; (2) the security officer’s testimony that Mashburn 

and Wood were together (thus connecting Mashburn to the surveillance video even 

though Motley could not identify him in court); (3) the backpack which is connected to

Mashburn because his name and address were inside and because of the hairbrush; (4) 

the butane torch; and (5) UPC labels recovered from the backpack, from under the front 

passenger seat, and from the same pocket as the methamphetamine.

We hold that this non-accomplice evidence tends to connect Mashburn with the 

offense and therefore provides sufficient corroboration for the accomplice-witness 

testimony of Wood. See TEX. CODE CRIM. PROC. ANN. art. 38.14; Medina v. State, 242

S.W.3d 573, 577 (Tex. App.—Waco 2007, no pet.). Accordingly, we overrule 

Mashburn’s first issue.

Extraneous Offense

Mashburn contends in his second issue that the court abused its discretion by 

admitting Wood’s testimony that he had a baggie of marihuana at home before they 

embarked on their journey.

The State contends that Mashburn failed to preserve this issue for appellate 

review because he objected at trial on different grounds (the marihuana incident 
Mashburn v. State Page 6

occurred on a different date and in a different locale). However, Mashburn included 

within his initial objection the statement that the marihuana testimony was 

objectionable because it referred to “an extraneous act.” This was sufficient to preserve 

the issue for our review.

We review a trial court’s ruling on the admissibility of extraneous-offense

evidence under an abuse-of-discretion standard. Prible v. State, 175 S.W.3d 724, 731 

(Tex. Crim. App. 2005). We will uphold the trial court’s ruling if it is within the “zone 

of reasonable disagreement.” Id. (quoting Santellan v. State, 939 S.W.2d 155, 169 (Tex. 

Crim. App. 1997)).5 “If the ruling was correct on any theory of law applicable to the 

case, in light of what was before the trial court at the time the ruling was made, then we 

must uphold the judgment.” Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005)

(quoting Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004)).

The State argues in the alternative that this evidence was admissible to prove 

intent. Although it is a close question, we agree. In Rogers v. State, the Court of 

Criminal Appeals held that similar evidence was “arguably” relevant because evidence 

that the appellant possessed marihuana “could arguably make it more probable that 

appellant would also be inclined to be in possession of another type of illegal substance 

(methamphetamine).” 853 S.W.2d 29, 32 (Tex. Crim. App. 1993); see also Wingfield v. 

State, 197 S.W.3d 922, 925 (Tex. App.—Dallas 2006, no pet.) (evidence that appellant had 

used marijuana on other occasions “was circumstantial evidence that appellant 

 

5 The original quotation is from Judge Clinton’s frequently cited opinion in Montgomery v. State, 

810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).
Mashburn v. State Page 7

intentionally or knowingly possessed marijuana on [date alleged]”); Mason v. State, 99

S.W.3d 652, 656 (Tex. App.—Eastland 2003, pet. ref’d) (evidence appellant possessed 

cocaine two years after charged offense “admissible as circumstantial evidence of 

appellant’s knowing possession of the cocaine in this case”); cf. Peters v. State, 93 S.W.3d 

347, 352-53 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (evidence of burning 

marihuana cigarette in defendant’s motel room inadmissible in cocaine case because 

defendant admitted that he was in possession of the cocaine). Contra Garcia v. State, 871

S.W.2d 769, 771-72 (Tex. App.—Corpus Christi 1994, pet. ref’d) (evidence of marihuana 

recovered from defendant’s shoe not relevant to prove knowledge or opportunity in 

prosecution for possession of cocaine).

In Rogers, the Court went on to hold that the evidence in question was 

inadmissible as same transaction contextual evidence because it would not have been 

impracticable for the State to prove its case without mentioning the marihuana also 

recovered from the defendant’s home. See Rogers, 853 S.W.2d at 33-34. Here, the State 

does not contend that the extraneous-offense evidence is admissible same transaction 

contextual evidence, and so we will not address its admissibility under this theory.

Mashburn challenged Wood’s credibility and argued that the State did not have 

sufficient corroborating evidence. Because Mashburn vigorously challenged the State’s 

proof that he intentionally or knowingly possessed the methamphetamine, we hold that 

it is within the “zone of reasonable disagreement” for the trial court to have concluded 

that the extraneous-offense was admissible under Rule 404(b) to prove Mashburn’s 

intentional or knowing possession of the methamphetamine. See Rogers, 853 S.W.2d at 
Mashburn v. State Page 8

32; Wingfield, 197 S.W.3d at 925; Mason, 99 S.W.3d at 656. Therefore, we overrule 

Mashburn’s second issue and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in affirming the trial court’s judgment. A separate 

opinion will not issue.)

Affirmed

Opinion delivered and filed October 1, 2008

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