                                       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.”).
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