                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-016-CR


ALAN SMITH                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

                                   ------------

          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

     A jury convicted Appellant Alan Smith of possession of a controlled

substance, hydrocodone, and assessed his punishment at seven years’

confinement in the Institutional Division of the Texas Department of Criminal

Justice and a fine of $7,000, probating both the incarceration and the fine.

The trial court sentenced him accordingly.



     1
         … See Tex. R. App. P. 47.4.
      In three points, Appellant argues that the trial court improperly admitted

evidence of an extraneous offense in violation of Blakely v. Washington 2 and

challenges the legal and factual sufficiency of the evidence. Because we hold

that the evidence is both legally and factually sufficient and because the trial

court did not err, we affirm the trial court’s judgment.

      On November 14, 2006, at approximately 11:30 a.m., Officer Orozco and

Officer Stegall stopped a vehicle that had run a stop sign and had made an

improper turn. Officer Stegall spoke with the driver of the car, Appellant, while

Officer Orozco looked through the windows and noticed a crack pipe on the

back dash of the car near the speakers. The officers searched the car and

discovered wire paraphernalia of the type used with a crack pipe and a pill

bottle with no label under Appellant’s seat. The pill bottle contained 46 tablets

of dihydrocodeinone, also known as hydrocodone, Lortab, and Lorcet.           No

latent fingerprints of evidentiary value were found on the pill bottle.

      Officer Orozco testified that he asked Appellant if he had a prescription

and that Appellant replied that the pills belonged to his wife. Appellant offered

to have his wife bring the prescription to the scene, but Officer Orozco was

never provided with a copy of her prescription. Appellant was arrested for




      2
          … 542 U.S. 296, 124 S. Ct. 2531 (2004).

                                       2
possession of hydrocodone.       At trial, Appellant’s wife testified that the

hydrocodone pills found in the car did not belong to her.

      Appellant’s defense at trial was that although he was the sole occupant

of the car, he was driving a vehicle that his wife often drove. Appellant said

that the hydrocodone belonged to his wife. He alternatively suggested that

another man, Coyle Goodall, had dropped the hydrocodone under the seat. The

State offered evidence of Appellant’s subsequent possession of hydrocodone

to rebut this defense.

      Approximately three months after the offense for which Appellant was

tried in the case now before this court, he was again pulled over for a traffic

violation, and a drug-sniffing dog discovered hydrocodone tablets in a cigarette

pack inside a bag owned by Appellant. In the jury charge on guilt, the trial

court provided,

             You are instructed that if there is any testimony before you
      in this case regarding the defendant having committed offenses,
      other than the offense alleged against him in the indictment in this
      case, you cannot consider said testimony for any purpose unless
      you find and believe beyond a reasonable doubt that the defendant
      committed such other offenses, if any were committed. Even if
      you find and believe beyond a reasonable doubt that the defendant
      committed such other offenses, then you may only consider the
      same in determining the motive, opportunity, intent, preparation,
      plan, knowledge, identity, or absence of mistake or accident of the
      defendant, if any, in connection with the offense, if any, alleged
      against him in the indictment in this case, and for no other purpose.


                                       3
      In his first point, Appellant argues that the trial court erred in admitting

evidence of the extraneous offense because Blakely requires that a jury make

determinations of fact when a defendant requests a jury trial. He argues that

because no jury had ever found him guilty of the extraneous offense, it was

improper to submit it to the jury in the case now before this court. Appellant

misunderstands      the   holding   in   Blakely,   which   simply   requires   that

determinations of fact be made by a jury in a jury trial and that a trial judge not

usurp the province of a jury in making determinations of fact.3

      Evidence of other wrongful acts is admissible to defeat a defense offered

by a defendant at trial.4 As the State points out, although evidence of wrongful

acts is generally not admissible to prove the character of the accused or to

establish that he acted in accordance with that character, extraneous offenses

may be admissible to show motive, opportunity, intent, or absence of mistake

or accident.5      Appellant argued below that he was unaware that the

hydrocodone was in the car and that it belonged either to his wife or to

Goodall. The trial court properly admitted evidence to defeat that defense, the


      3
          … Id. at 303, 124 S. Ct. at 2537.
      4
       … Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008); Moses
v. State, 105 S.W.3d 622, 626 & n.4 (Tex. Crim. App. 2003).
      5
       … Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 377
(Tex. Crim. App. 1990) (op. on reh'g).

                                          4
evidence was probative under rule 404 of the rules of evidence, the probative

value was not substantially outweighed by the danger of unfair prejudice, and

therefore the evidence was not subject to exclusion under rule 403.6

      Additionally, we note that the jury charge contains a proper reasonable

doubt instruction; that is, the jury was asked to determine Appellant’s guilt of

the extraneous offense beyond a reasonable doubt and instructed not to

consider the evidence of the extraneous offense unless they found him guilty

of that offense beyond a reasonable doubt. We overrule Appellant’s first point.

      In his second point, Appellant argues that the evidence is legally

insufficient to support the verdict, relying on the absence of evidence that he

physically possessed the drugs, including the absence of fingerprint evidence

tying him to the drugs. As the Texas Court of Criminal Appeals has held,

      When deciding whether evidence is sufficient to support a
      conviction, a reviewing court must assess all the evidence in the
      light most favorable to the verdict to determine whether any
      rational trier of fact could find the essential elements of the crime
      beyond a reasonable doubt. To prove unlawful possession of a
      controlled substance, the State must prove that: (1) the accused
      exercised control, management, or care over the substance; and (2)
      the accused knew the matter possessed was contraband. Whether
      this evidence is direct or circumstantial, “it must establish, to the
      requisite level of confidence, that the accused’s connection with




      6
          … See Tex. R. Evid. 403, 404.

                                          5
      the drug was more than just fortuitous. This is the whole of the
      so-called ‘affirmative links’ rule.” 7

      Appellant was the driver and sole occupant of the vehicle at the time of

his arrest. The hydrocodone was discovered under the driver’s seat, where he

had been sitting. His offer to the police officer to get his wife to bring a copy

of “her prescription” shows that he knew the pills in the bottle were

prescription drugs.   The absence of the prescription from evidence at trial,

Appellant’s wife’s testimony that the hydrocodone found in the vehicle was not

hers, the subsequent arrest of Appellant for again possessing hydrocodone, and

his proximity to the drugs at the time of their discovery establish that he

exercised care, custody, and control over the drugs.         Consequently, we

conclude that a rational trier of fact could have found beyond a reasonable

doubt that Appellant exercised care, custody, control, and management over

the pills and that he knew the pills were contraband.8 Therefore, we hold that

the evidence is legally sufficient to support his conviction.      We overrule

Appellant’s second point.




      7
      … Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App.
2005) (citations omitted).
      8
          … See id.

                                       6
      In his third point, Appellant contends that the evidence is factually

insufficient to support the verdict. Appellant relies on the evidence that he was

not found in physical possession of the hydrocodone and that his fingerprints

were not on the bottle. But viewing all the evidence presented to the jury in a

neutral light, favoring neither party,9 we hold that the evidence is factually

sufficient to support the verdict. We overrule Appellant’s third point.

      Having overruled Appellant’s three points, we affirm the trial court’s

judgment.

                                                 PER CURIAM

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 5, 2009




      9
     … See Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008);
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).

                                       7
