                                   NO. 07-03-0236-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                NOVEMBER 20, 2003
                          ______________________________

                                   MICHAEL MAHAN,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2002-401,254; HONORABLE WILLIAM R. SHAVER, JUDGE
                      _______________________________

                               Memorandum Opinion
                         _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

       Via two issues, appellant Michael Mahan contests his convictions under two counts

for manufacture of a controlled substance of less than 400 grams but at least 200 grams

and possession of a controlled substance with intent to deliver of less than 400 grams but

at least 200 grams. In those issues, he contends the evidence is insufficient to sustain the

convictions and he should have received instructions on lesser-included offenses. We

affirm the judgment.
                                       Background

        On July 3, 2003, Anna Blakemore, who lived at 5018 45th Street in Lubbock with her

common law husband Eddie Metzig, made a 911 call to police from the residence and

reported that a white van carrying appellant, Rick Bedwell, and Mary Taylor had pulled into

her driveway and the occupants were cooking methamphetamine. After calling police,

Blakemore told Taylor that the police had been notified, and Taylor ran to the van and told

Bedwell and appellant. The three of them began unloading items from the van into the

living room of the residence. When the police arrived, appellant, Bedwell, and Taylor were

gone.    However, one officer noticed in the alley three individuals matching their

description. Bedwell and Taylor were taken into custody. Appellant escaped and later told

others that he hid in nearby bushes.

        The items removed from the van included apparatus used in the manufacture of

methamphetamine as well as methamphetamine itself.                Appellant was arrested

approximately a month later driving the same white van in Oklahoma.

                            Issue One - Accomplice Evidence

        In his first issue, appellant challenges the legal and factual sufficiency of the

evidence to sustain the conviction. We overrule the issue.

        Appellant argues that the testimony of Eddie Metzig is the only evidence that places

him by the cooking apparatus in the van and, because Metzig is an accomplice, there must

be additional corroboration of that fact in order to prove possession and manufacture of




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the methamphetamine. Thus, he contends, if Metzig’s testimony is erased, there is no

other testimony establishing that he was cooking the drug.

       A defendant cannot be convicted upon the testimony of an accomplice unless it is

corroborated by other evidence tending to connect the defendant with the offense

committed, and the corroboration is insufficient if it merely shows the commission of the

offense. TEX . CODE CRIM . PROC . ANN . art. 38.14 (Vernon 1979). While appellant couches

his issue in terms of legal and factual sufficiency, accomplice witness corroboration is not

reviewed under those standards. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex. Crim.

App. 1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). In

conducting a sufficiency review under the accomplice witness rule, the court eliminates the

accomplice testimony from consideration and examines the record to see if any evidence

tends to connect the defendant to the commission of the offense. Solomon v. State, 49

S.W.3d 356, 361 (Tex. Crim. App. 2001). The evidence does not have to directly link the

defendant to the crime or establish his guilt beyond a reasonable doubt. McDuff v. State,

939 S.W.2d 607, 613 (Tex. Crim. App. 1997).

       Anna Blakemore testified that appellant along with Mary Taylor and Rick Bedwell

unloaded the contents of a methamphetamine lab from a van that was parked in her

driveway. Methamphetamine was also found among the contents of the lab. Appellant

and the others left on foot before the police arrived. Barbara Taylor, the mother of Mary

Taylor, additionally testified that several days later, appellant told her and Mary that he

had hidden in the bushes on the day of the incident to avoid being arrested. Further,




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appellant was arrested in Oklahoma approximately a month later driving the same white

van from which the methamphetamine lab had been unloaded.

      Proof that the accused was at or near the place where the crime occurred at or

about the time it happened along with other circumstances can be sufficient corroboration

to support a conviction. Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992). Other

suspicious circumstances may include subsequent flight. Cruz v. State, 690 S.W.2d 246,

250 (Tex. Crim. App. 1985); Gipson v. State, 819 S.W.2d 890, 892 (Tex. App.--Dallas

1991), aff’d, 844 S.W.2d 738 (Tex. Crim. App. 1992). In the case at bar, 1) appellant was

at the residence of the accomplice in a van which contained a methamphetamine lab, 2)

he assisted in unloading the lab from the van, 3) he fled from the scene before the arrival

of police and hid in the bushes to avoid arrest, and 4) sometime later he was arrested in

possession of and exercising control over the same van. These facts are sufficient to

connect appellant to the manufacture and possession of methamphetamine. See O’Shea

v. State, 740 S.W.2d 527, 527-28 (Tex. App.--Houston [14th Dist.] 1987, no pet.) (holding

the evidence was sufficient corroboration of possession of a controlled substance when

the defendant was the driver of a truck owned by his father and he looked around a

parking lot while the passenger took a brown paper bag containing a controlled substance

from the defendant’s side of the truck and left it by a dumpster).

       We further note that appellant simply attacks the accomplice testimony suggesting

that he personally cooked the methamphetamine. He does not deny that he was present

during the manufacture of the drug, that he helped unload the manufacturing equipment

from the van, that methamphetamine was being cooked by someone in the group, that he


                                            4
knew that someone was making the drug, or that he facilitated its manufacture.1 This is

of import because the trial court included in its instructions to the jury a party charge.

Thus, irrespective of any accomplice testimony regarding whether he did the actual

cooking, as a party to the manufacturing of the drug he was nonetheless susceptible to

conviction for manufacturing a controlled substance. TEX . PEN . CODE ANN . §7.02(a)(2)

(Vernon 2003) (stating that a person is criminally responsible for an offense committed by

another person if, while acting with intent to promote or assist the commission of the

offense, he solicits, encourages, directs, aids, or attempts to aid the other person to

commit the offense).

                           Issue Two - Lesser-Included Offenses

       In his second issue, appellant complains of the trial court’s refusal to include in its

charge three purportedly lesser-included offenses. The latter consisted of an instruction

on “possession or transport of certain chemicals with intent to manufacture a controlled

substance” as well as instructions for his purported attempt to manufacture or possess

methamphetamine. We overrule the issue.

       As to the instructions about the supposed “attempt” to possess or “attempt” to

manufacture, they are inadequately briefed. Other than alluding to those proposed

instructions as to which he believed himself entitled, appellant said nothing more about

them in his brief. He neither argued nor tried to illustrate (through explanation and citation

to authority) how the proof of the lesser offenses was included within the proof necessary



       1
        Indeed, under issue two appellant argues that the evidence was sufficient to illustrate that he
possessed or transported chemicals used to make the drug “with intent to manufacture [the] controlled
substance.”

                                                  5
to establish the charged offense. Nor did he argue or try to illustrate that some evidence

exists permitting a rational factfinder to conclude that if he is guilty of anything it is only of

the offenses of attempted possession or manufacture of a controlled substance. See

Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. ), cert. denied, 510 U.S. 919,

114 S.Ct. 313, 126 L.Ed.2d 260 (1993) (stating that an instruction on a lesser-included

offense is proper when 1) the lesser-included offense is included within the proof

necessary to establish the offense charged, and 2) some evidence exists in the record that

would permit a rational jury to find that if the defendant is guilty, he is guilty only of the

lesser offense). Having failed in that regard, he waived his complaint. TEX . R. APP . P.

38.1(h) (requiring appellant’s brief to contain a clear and concise argument for the

contentions made with appropriate citations to authorities and to the record); Jackson v.

State, 50 S.W.3d 579, 591 (Tex. App.--Fort Worth 2001, pet. ref’d) (holding that the

defendant waived his right to complain on appeal by failing to present any argument or

authority supporting his point of error).

       As to the supposed lesser offense of possessing or transporting certain chemicals

with the intent to make methamphetamine, we again view the party charge as a bar to his

success. In other words, appellant suggested that the evidence showed he may have only

possessed or transported various chemicals with the intent to manufacture that substance

because someone else actually made the drug. Yet, if he did that and he effectively aided

another person to make the drug, then he would not simply be guilty of a lesser offense.

This is so because that conduct illustrates his status as a party. And, as a party to the

manufacturing of a controlled substance, he may be convicted for the greater offense of


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manufacturing the drug.      TEX . PEN . CODE ANN . §7.02(a)(2) (Vernon 2003).          Thus,

appellant’s argument falls short of illustrating that if he is guilty of anything it is only of

committing the lesser offense, as mandated by Rousseau.

       Accordingly, the judgment of the trial court is affirmed.



                                                   Brian Quinn
                                                     Justice

Do not publish.




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