Johnta Martee McNeal v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00355-CR
JOHNTA MARTEE MCNEAL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 84th District Court
Hutchinson County, Texas
Trial Court No. 10700, Honorable William D. Smith, Presiding
July 17, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
A jury convicted appellant Johnta Martee McNeal of possession of four grams or
more but less than 200 grams of methamphetamine with intent to deliver 1 and
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TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(d) (West 2010). An
offense under section 481.112(d) is punishable by imprisonment for life or for a term of
not more than 99 years or less than 10 years, and a fine not to exceed $100,000. TEX.
HEALTH & SAFETY CODE ANN. § 481.112(e) (West 2010). On a showing of a prior felony
conviction, the minimum term of confinement is increased to fifteen years. TEX. PENAL
CODE ANN. § 12.42(c)(1) (West Supp. 2014).
tampering with physical evidence.2 Concurrent prison terms of twenty years, enhanced,
and five years were assessed. Finding the evidence was insufficient to prove appellant
committed the offense of tampering with physical evidence or its attempt, we will modify
the judgment to render an acquittal on that charge. As modified, we will affirm the
judgment of the trial court.
Background
A Borger motorcycle police officer stopped a car owned by appellant and driven
by his younger brother for traffic violations. Appellant was the only passenger. The
officer approached the driver’s side and there spoke with appellant’s brother.
Appellant and his brother each produced identification cards but could not open
the glove compartment which they believed contained proof of insurance. Meanwhile,
the officer saw a marijuana pipe in the vehicle’s ashtray. The officer also noticed on the
center console a scale of a type he believed was typically used to weigh drugs for sale.
When asked if the vehicle contained “anything illegal” appellant’s brother responded
that he smoked “weed” and used the scale “to weigh [his] marijuana.”
At the officer’s direction, appellant’s brother stepped out of the vehicle and the
officer conducted a pat-down search. After obtaining consent, the officer also searched
the brother’s pockets, finding some $700 in cash. Of the cash, $500 was bound
together with a “female’s hair tie.”
2
TEX. PENAL CODE ANN. § 37.09(a) (West Supp. 2014). An offense under this
section is a felony of the third degree. Id. at § 37.09(c). It is punishable by confinement
in prison for two to ten years and a fine of not more than $10,000. TEX. PENAL CODE
ANN. § 12.34(a),(b) (West 2011).
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The officer then directed appellant’s brother to sit down while he turned his
attention to appellant. By this time a backup officer in a patrol car arrived. At his
request appellant exited the vehicle.
The officer began questioning appellant. As they spoke appellant looked away.
Suddenly he withdrew objects from his pocket. Saying they were “pipes,” he dropped
them. A glass pipe, which the officer testified was a methamphetamine pipe, broke.
The other item was part of a crack pipe. The officer testified by that point he intended to
arrest appellant for tampering with physical evidence and possession of paraphernalia.
The officer added that appellant “started to kind of bolt a little bit.” The video
recording from the backup officer’s car shows appellant began a quick movement away
from the officers. The backup officer grabbed appellant, placed him on the ground, and
handcuffed him.
Searching appellant’s person, the officer discovered a Kool cigarette box in his
underwear. Inside the box was a “large” clear bag containing a “white crystal
substance” the officer believed was methamphetamine. A photograph in evidence
shows the bag on the brother’s digital scale. It registers 23.1 grams. Department of
Public Safety testing later showed the substance contained methamphetamine and
weighed 22.44 grams.
The officer testified he had completed several law-enforcement programs,
including narcotics training, and had participated in seventy to eighty drug arrests. The
majority of these arrests were for methamphetamine. In the officer’s opinion, a user of
methamphetamine might consume a gram or perhaps a gram-and-a-half per day. He
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further observed that, based on a user’s consumption of one gram a day, the quantity of
methamphetamine appellant possessed would last twenty-three days. The officer also
testified that an ounce equates to roughly twenty-eight grams. At the time of appellant’s
arrest, methamphetamine in Borger sold for $100 per gram and was priced on a “point
for point” system. For example, he continued, a tenth of a gram sold for $10, two-tenths
for $20, and so on.
After appellant’s arrest, during a search of his vehicle, officers found a notice
indicating appellant was behind on his car loan payments. Officers also located three
cell phones although at trial the officer could not recall whether the phones came from
the person of appellant, his brother or the vehicle. Two CDs were found bearing the
handwritten titles “crack” and “cocaine.”
The jury was charged on the law of parties. It returned verdicts convicting
appellant of possession with intent to deliver a controlled substance and tampering with
physical evidence. The court imposed the sentences noted and signed a single
judgment.
Analysis
First Issue: Intent to Deliver
Appellant contends that the evidence was insufficient to establish the “intent to
deliver” element of the possession offense.3
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It was the State’s burden to prove appellant knowingly possessed with intent to
deliver a controlled substance listed in Penalty Group 1. TEX. HEALTH & SAFETY CODE
ANN. § 481.112(a) (West 2010). Here the controlled substance was methamphetamine.
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In a sufficiency review, we examine the evidence to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979));
Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the
evidence in the light most favorable to the verdict and assume the trier of fact resolved
conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a
manner that supports the verdict. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim.
App. 2007).
‘“Deliver’ means to transfer, actually or constructively, to another a controlled
substance . . . . The term includes offering to sell a controlled substance . . . .” TEX.
HEALTH & SAFETY CODE ANN. § 481.002(8) (West Supp. 2014). Intent to deliver may be
proved with circumstantial evidence, including evidence that the defendant possessed
the contraband. Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th
Dist.] 2006, pet. refused). “Intent can be inferred from the acts, words, and conduct of
the accused.” Id. at 326 (quoting Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim.
App. 1995)). The expert testimony of an experienced law enforcement officer may be
used to establish an accused’s intent to deliver. Id. The factors to be considered in
determining whether a defendant possessed contraband with an intent to deliver include
the nature of the location where the defendant was arrested, the quantity of drugs the
defendant possessed, the manner of packaging the drugs, the presence or absence of
drug paraphernalia, whether the defendant possessed a large amount of cash, and the
_____________________
Methamphetamine is listed in Penalty Group 1. TEX. HEALTH & SAFETY CODE ANN. §
481.102(6).
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defendant’s status as a drug user. Kibble v. State, 340 S.W.3d 14, 18-19 (Tex. App.—
Houston [1st Dist.] 2010, pet. refused); see also Williams v. State, 902 S.W.2d 505, 507
(Tex. App.—Houston [1st Dist.] 1994, pet. refused). This list of factors is not exclusive,
nor must they all be present to establish a defendant’s intent to deliver. Kibble, 340
S.W.3d at 19.
We find the evidence permitted a rational jury to determine appellant had the
intent to deliver the methamphetamine he possessed. The jury could have determined
the officer was experienced in handling narcotics arrests, particularly those involving
methamphetamine. A marijuana pipe and a scale admittedly used for weighing drugs
were in plain view inside the vehicle. On his person, appellant possessed pipes for
smoking crack cocaine and methamphetamine, but there was no evidence of
intoxication. Appellant was delinquent in repaying his car loan. Three cell phones were
present. In appellant’s underwear were 22.44 grams of methamphetamine, about a 23-
day supply for a user. Appellant’s brother possessed about $700 cash, $500 of it bound
together. Five hundred dollars approximated the street-value difference between an
ounce of methamphetamine and the amount found in appellant’s underwear. The jury
was charged on the law of parties. In this way, during closing argument, the prosecutor
argued, “[s]o one has got the dope and one is holding the money. Aid and assist to aid.
Sounds like a simple business transaction with two parts of the same business. One is
delivering and one is collecting.” The jury was entitled to agree.
Appellant’s first issue is overruled.
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Second Issue: Tampering with Physical Evidence
Appellant next contends the evidence was insufficient to establish he concealed
the methamphetamine with knowledge an investigation was in progress. The indictment
alleged “[Appellant] did then and there knowing that an investigation was in progress, to
wit: the Defendant was being detained by law enforcement, did conceal a thing, to wit: a
baggie containing methamphetamine with intent to impair its availability as evidence in
said investigation[.]” The application paragraph of the charge inquired whether
appellant tampered “with physical evidence knowing that an investigation was in
progress, to wit: [appellant], while being detained by law enforcement, did conceal a
thing, to wit: a baggie containing methamphetamine, with intent to impair its availability
as evidence in said investigation[.]”
The offense of tampering with physical evidence contains three elements:
knowing that an investigation or official proceeding is pending or in progress, a person
alters, destroys, or conceals any record, document, or thing, with intent to impair its
verity, legibility, or availability as evidence in the investigation or official proceeding.
TEX. PENAL CODE ANN. § 37.09(a)(1) (West Supp. 2014); Rabb v. State, 434 S.W.3d
613, 616 (Tex. Crim. App. 2014) (citing Williams v. State, 270 S.W.3d 140, 142 (Tex.
Crim. App. 2008)).
We read appellant’s brief to include the contention the evidence does not show
when he put the cigarette package into his underwear, and we agree with the
contention. The evidence shows merely the fact of the traffic stop, the officer’s initial
attention to appellant’s brother, and the eventual discovery of the cigarette box from the
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search of appellant after he was cuffed. The State contends the jury could have
inferred he concealed the box in his underwear after the officer initiated the traffic stop.
We agree appellant had the opportunity to do so between the initiation of the traffic stop
and appellant’s removal from the car. But there is no evidence he did so during that
time, and we disagree the evidence permits a reasonable inference of it. See Hooper v.
State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007) (conclusion reached by speculation
may not be completely unreasonable but is not sufficiently based on facts or evidence to
support finding beyond reasonable doubt). On cross-examination, the officer
acknowledged that as he approached the vehicle after the stop, he watched for “overt or
furtive movements” and saw none. When asked if he saw appellant shift in his seat in
the vehicle the officer responded he did not. He added “not in an abnormal amount of
(sic) fashion, no.” We also have carefully reviewed the video taken from the backup
officer’s patrol car and see no movements suggesting appellant concealed the box while
in the view of the camera.
The State also argues appellant admitted during punishment-phase testimony his
guilt of concealing the methamphetamine in his underwear and argues he is now
effectively estopped to complain the evidence was insufficient to support his conviction
for tampering with evidence. We need not decide whether appellant admitted the
indicted offense during his punishment-phase testimony. “[A] defendant who testifies at
the punishment stage of trial and admits his guilt does not forfeit his right to complain on
appeal about errors occurring during the guilt stage.” Jacobson v. State, 398 S.W.3d
195, 196-97 (Tex. Crim. App. 2013) (overruling De Garmo v. State, 691 S.W.2d 657
(Tex. Crim. App. 1985)).
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We now consider whether appellant could have been convicted of a lesser-
included offense. Rabb, 434 S.W.3d at 618; Thornton v. State, 425 S.W.3d 289, 299-
300 (Tex. Crim. App. 2014).
For this determination, the Court of Criminal Appeals prescribes two questions:
“1) in the course of convicting the appellant of the greater offense, must the jury have
necessarily found every element necessary to convict the appellant for the lesser-
included offense; and 2) conducting an evidentiary sufficiency analysis as though the
appellant had been convicted of the lesser-included offense at trial, is there sufficient
evidence to support a conviction for that offense?” Rabb, 434 S.W.3d at 620 (quoting
Thornton, 425 S.W.3d at 299-300). If the answer to either question is no, we are not
authorized to reform the judgment. But if the answers to both are yes, we are required
to reform the judgment to reflect a conviction for the lesser-included offense. Id.
Under the criminal attempt statute, a person “commits an offense if, with specific
intent to commit an offense, he does an act amounting to more than mere preparation
that tends but fails to effect the commission of the offense intended.” TEX. PENAL CODE
ANN. § 15.01(a) (West 2011). A person commits the offense of attempted tampering
with or fabricating physical evidence if, with specific intent to commit the offense of
tampering with or fabricating physical evidence, he does an act amounting to more than
mere preparation that tends but fails to effect the commission of the offense. Beck v.
State, No. 10-08-00365-CR, 2010 Tex. App. LEXIS 7265, at *8-9 (Tex. App.—Waco
Sept. 1, 2010, pet. refused) (mem. op. on reh’g, not designated for publication).
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For the same reason appellant could not have been convicted of the greater
offense, he could not have been convicted of the lesser-included offense of attempt.
The record is devoid of evidence that while an investigation was in progress appellant,
acting with specific intent to commit tampering with evidence, performed any
preparatory act tending, but failing, to effect commission of tampering with physical
evidence. The response to question number two of the Thornton inquiry is no. Rabb,
434 S.W.3d at 620. Appellant’s second issue is sustained.
Conclusion
We reverse appellant’s conviction for tampering with physical evidence, and
render a judgment of acquittal of that offense. We modify the trial court’s judgment to
reflect appellant’s acquittal of the charge of tampering with physical evidence. As
modified, the judgment is affirmed.
James T. Campbell
Justice
Do not publish.
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