                                  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.
                        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 2
        Here, the accomplice Tuesday Wood and Mashburn were both indicted for

possession of methamphetamine.1 A security officer detained them at a Bellmead Wal-

Mart 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 3
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 4
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 5
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 6
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 7
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
Do not publish
[CR25]




Mashburn v. State                                                                  Page 8
