                                    IN THE
                            TENTH COURT OF APPEALS

                                   No. 10-15-00022-CR

MICHAEL DWAYNE CLARK,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee



                              From the 54th District Court
                               McLennan County, Texas
                              Trial Court No. 2014-585-C2


                             MEMORANDUM OPINION


          The jury convicted Michael Dwayne Clark of the offense of possession of a

controlled substance, heroin, and assessed punishment at fifteen years confinement. We

affirm.

                                      Background Facts

          Officer Jared Bonner, with the Lacy Lakeview Police Department, testified at trial

that while on patrol around 5:45 a.m. he observed a vehicle traveling at a high rate of

speed. Officer Barron observed that the vehicle’s tail lights were not working, and he
initiated a traffic stop. The vehicle pulled over, but continued to “creep for a while”

before coming to a complete stop. Officer Bonner approached the vehicle, and he noticed

a “fairly good amount” of what he suspected to be marihuana on the driver’s clothes.

Michael Dewayne Clark was identified as the driver of the vehicle. Officer Bonner had

Clark exit the vehicle, and he placed Clark in handcuffs while he waited for assistance

and conducted an investigation.

        Raven McQuirter was a passenger in the vehicle. Officer Bonner asked if there

was anything illegal in the car, and McQuirter motioned toward the console area. Officer

Bonner observed a clear cup containing a "green leafy substance” in the console area of

the car. McQuirter removed a bag from her pants that contained what appeared to be

marihuana. Inside the bag of marihuana, was a smaller plastic bag that contained heroin

capsules and additional marihuana. Officer Bonner testified that when he told McQuirter

the bag contained heroin capsules, she appeared to have no knowledge that there was

heroin in the bag.

                           Accomplice Instruction and Evidence

        In the first issue, Clark argues that the trial court erred by failing to instruct the

jury that Raven McQuirter was an accomplice as a matter of law. Appellate review of

alleged jury-charge error involves a two-step process. Abdnor v. State, 871 S.W.2d 726,

731 (Tex. Crim. App. 1994). Initially, the court must determine whether error actually

exists in the charge. If error is found, the court must then evaluate whether sufficient

harm resulted from the error to require reversal. Id. at 731-32.



Clark v. State                                                                          Page 2
        The trial court instructed the jury as follows:

        You are instructed that an “accomplice,” as the term is here used, means
        anyone connected with the crime charged, as a party thereto and includes
        all persons who are connected with the crime by unlawful act or omission
        on their part transpiring either before or during the time of the commission
        of the offense, and whether or not they were present and participated in the
        commission of the crime. A person is criminally responsible as a party to
        an offense if the offense is committed by his or her own conduct, by the
        conduct of another for which he or she is criminally responsible, or by both.
        Mere presence alone, however, will not constitute one a party to an offense.

        A person is criminally responsible for an offense committed by the conduct
        on (sic) another if, acting with intent to promote or assist the commission of
        the offense, he or she solicits, encourages, directs, or aids or attempts to aid
        the other person to commit the offense. The term “conduct” means any act
        or omission and its accompanying mental state.

        You are further instructed that a conviction cannot be had upon the
        testimony of an accomplice unless the jury first believes that the
        accomplice’s evidence is true and that it shows the defendant is guilty of
        the offense charged against him, and even then you cannot convict unless
        the accomplice’s testimony is corroborated by other evidence tending to
        connect the defendant with the offense charged, and the corroboration is
        not sufficient if it merely shows the commission of the offense, but it must
        also tend to connect the defendant with its commission.

        Now, if you believe from the evidence beyond a reasonable doubt that an
        offense was committed and you further believe from the evidence that the
        witness Raven McQuirter was an accomplice, or if you have a reasonable
        doubt as to whether she was or not, as that term is defined in the foregoing
        instructions, then you cannot convict the defendant upon the testimony of
        Raven McQuirter unless you first believe that the testimony of Raven
        McQuirter is true and that it shows the defendant is guilty as charged in the
        indictment; even then you cannot convict the defendant unless you further
        believe that there is other evidence in the case, outside the evidence of
        Raven McQuirter tending to connect the defendant with the commission of
        the offense charged in the indictment, and then from all the evidence you
        must believe beyond a reasonable doubt that the defendant is guilty.

        Clark argues that Raven McQuirter was an accomplice as a matter of law and that

the trial court erred instructing the jury that they were required to determine whether she

Clark v. State                                                                             Page 3
was an accomplice as a matter of fact. A proper accomplice-witness instruction informs

the jury either that a witness is an accomplice as a matter of law or that he is an accomplice

as a matter of fact. Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013); Cocke v.

State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006). The evidence in each case will dictate

the type of accomplice-witness instruction that needs to be given, if any. Zamora v. State,

411 S.W.3d at 510.

        A witness is an accomplice as a matter of law when the witness has been charged

with the same offense as the defendant or a lesser-included offense, or "when the

evidence clearly shows that the witness could have been so charged." Id. For accomplice

witnesses as a matter of law, the trial court affirmatively instructs the jury that the witness

is an accomplice and that his testimony must be corroborated. Id. When the evidence

presented by the parties as to the witness's complicity is conflicting or inconclusive, then

the accomplice-witness instruction asks the jury to (1) decide whether the witness is an

accomplice as a matter of fact, and (2) apply the corroboration requirement, but only if it

has first determined that the witness is an accomplice. Id.

        Clark was indicted for intentionally or knowingly possessing heroin, but

McQuirter was not charged with the offense. McQuirter testified that when they were

pulled over by the police, Clark pulled a bag out of his pocket. McQuirter knew the bag

contained marihuana, and she told Clark to give her the bag. McQuirter stated that she

has never knowingly possessed heroin, and that she was “shocked” when Officer Bonner

told her the bag also contained heroin. Officer Bonner also testified that McQuirter

appeared to have no knowledge that the bag contained heroin.

Clark v. State                                                                           Page 4
        An accomplice is a person who participates in the offense before, during, or after

its commission with the requisite mental state. Smith v. State, 332 S.W.3d 425, 439 (Tex.

Crim. App. 2011). A person is not an accomplice if the person knew about the offense

and failed to disclose it or helped the accused conceal it. Smith v. State, 332 S.W.3d at 439.

“When the evidence clearly shows (i.e., there is no doubt) that a witness is an accomplice

as a matter of law, the trial judge must instruct the jury accordingly.” Id. Because the

evidence is inconclusive that McQuirter knowingly possessed heroin, we cannot say that

the trial court erred instructing the jury to determine if McQuirter was an accomplice as

a matter of fact, and to apply the corroboration requirement only if it determined that she

was an accomplice. We overrule the first issue.

        In the second issue, Clark argues that the evidence is insufficient to corroborate

the accomplice’s testimony. It cannot be determined from the record whether or not the

jury found McQuirter to be an accomplice. However, we will address the sufficiency of

the evidence to support corroboration.

        Article 38.14 of the Code of Criminal Procedure provides that, “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. 38.14 (West 2005). When reviewing the sufficiency of non-

accomplice evidence under Article 38.14, we decide whether the inculpatory evidence

tends to connect the accused to the commission of the offense. Smith v. State, 332 S.W.3d

at 442. The direct or circumstantial non-accomplice evidence is sufficient corroboration

Clark v. State                                                                          Page 5
if it shows that rational jurors could have found that it sufficiently tended to connect the

accused to the offense. Id. So when there are conflicting views of the evidence, we will

defer to the factfinder's resolution of the evidence. Id. It is not appropriate for appellate

courts to independently construe the non-accomplice evidence. Id.

        Clark admitted to Officer Bonner that he was rolling a marihuana “blunt” while

he was driving, and Officer Bonner observed marihuana on Clark’s clothes. Clark further

admitted to Officer Bonner that he had purchased the bag of marihuana that contained

the heroin pills. Officer Bonner stated that McQuirter appeared to have no knowledge

that the bag of marihuana also contained heroin. We find that, assuming the jury found

McQuirter to be an accomplice, a rational jury could have found that the non-accomplice

evidence sufficiently connected Clark to the offense. We overrule the second issue.

                                      Expert Testimony

        In the third issue, Clark argues that the trial court abused its discretion by refusing

to permit him to conduct a voir dire examination of the State’s expert about the

underlying facts and data supporting her opinion. The State called Lindsey Hatfield, a

forensic scientist for the Texas Department of Public Safety, to testify concerning her

testing and analysis of the heroin capsules in this case.

        When the State was preparing to introduce Hatfield’s report on her findings,

Clark’s trial attorney stated, “while we have no objection to Ms. Hatfield being

recognized as an expert, before she testifies as to this particular test, I would like to take

her on a brief short voir dire as to this test only.” The trial court asked for what purpose,

and trial counsel responded, “To inquire into maintenance, calibration, supporting

Clark v. State                                                                           Page 6
documents she may have to make sure that this test meets requirements of 702 and should

actually come into evidence.” The trial court overruled the request.

          Clark argues on appeal that Rule 705 (b) requires the trial court to permit a voir

dire examination. Rule 705 (b) in effect at the time of trial states that

          Prior to the expert giving the expert’s opinion or disclosing the underlying
          facts or data, a party against whom the opinion is offered upon request in a
          criminal case shall, or in a civil case may, be permitted to conduct a voir
          dire examination directed to the underlying facts or data upon which the
          opinion is based. This examination shall be conducted out of the hearing
          of the jury.

TEX. R. EVID. 705 (b)1. At trial, Clark stated that the purpose of the voir dire was to insure

that the test met the requirements of Rule 702 of the Texas Rules of Evidence. Clark did

not request to voir dire the witness based upon Rule 705 (b) of the Texas Rules of

Evidence. Clark has waived his complaint for appellate review. TEX.R.APP.P. 33.1 (a).

Moreover, any error in denying the request was harmless. TEX.R.APP.P. 44.2 (b). Clark

questioned Hatfield on cross-examination about the calibration and maintenance of the

equipment. Hatfield stated that the machine does not require calibration and that she

had performed maintenance on the machine during the time leading up to the

examination of the evidence. We overrule the third issue.




                                                    AL SCOGGINS
                                                    Justice




1   Tex. R. Evid. 705 (b) was amended effective April 1, 2015.

Clark v. State                                                                           Page 7
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurring)
Affirmed
Opinion delivered and filed October 8, 2015
[CR25]




Clark v. State                                Page 8
