Homero Erasmo Garza Jr. v. State ( 2013 )

NUMBER 13-12-00335-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MICHAEL TURNER Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Justice Longoria
Appellant, Michael Turner, challenges the sufficiency of the evidence supporting
his conviction for tampering with physical evidence, a felony offense. TEX. PENAL CODE
ANN. § 37.09(a)(1) (West 2010). We affirm as modified.
I. BACKGROUND
This case arises out of a nighttime incident in which Officer Hobbs of the Corpus
Christi Police Department observed appellant walking in the street where there was an
available sidewalk. Hobbs testified at trial that he approached appellant and observed
appellant remove an object from his pocket and place it into his mouth. Hobbs further
testified that appellant mumbled in response to his questions and that his eyes were
“bloodshot, glassy, and red.” Based on the foregoing, Hobbs suspected that appellant
was intoxicated. Hobbs looked in appellant’s mouth and testified that he saw a clear
plastic baggie with a “white or beige rock-like” substance within it. After two backup
officers arrived, Hobbs arrested appellant for public intoxication. Hobbs and Officer
Stephen Rubelmann, one of the backup officers, testified that once Hobbs informed
appellant that he was under arrest, appellant began making “chewing” gestures that
they interpreted as an attempt to swallow the baggie. Hobbs applied a “neck hold” to
appellant to prevent him from swallowing, but he believed it was unsuccessful because,
after a few seconds, appellant stopped mumbling and spoke clearly. Appellant resisted
Hobbs’s attempts to handcuff him and was subdued with pepper spray. Thereafter, the
State indicted appellant for tampering with physical evidence. He waived a jury trial and
was found guilty following a bench trial. The court assessed punishment at two years’
imprisonment. This appeal followed.
II. ANALYSIS
Appellant challenges the sufficiency of the evidence supporting his conviction by
arguing that the State did not produce evidence sufficient to prove that he actually
possessed narcotics that he destroyed by swallowing.
A. Standard of Review
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In evaluating the sufficiency of the evidence supporting a conviction, our inquiry
is “whether, after viewing the evidence in a light most favorable to the verdict, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Garcia v. State, 367 S.W.3d 684, 686–87 (Tex. Crim. App. 2012)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It is the role of the trier of fact to
resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from
that evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing
Jackson, 443 U.S. at 318–19 (1979)). The trier of fact, in this case the trial court judge,
is the sole judge of the credibility of witnesses and the weight, if any, to be given to their
testimony. Garcia, 367 S.W.3d at 686–87; Brooks v. State, 323 S.W.3d 893, 899 (Tex.
Crim. App. 2010). The State may prove the elements of an offense by either direct or
circumstantial evidence. Hooper, 214 S.W.3d at 13. In a legal sufficiency review
“circumstantial evidence is as probative as direct evidence in establishing the guilt of an
actor, and circumstantial evidence alone can be sufficient to establish guilt.” Id. If the
record could support conflicting inferences, we presume that the fact finder resolved the
conflict in favor of the prosecution and defer to that resolution. Garcia, 367 S.W.3d at
687.
B. Applicable Law
We measure the sufficiency of the evidence supporting a conviction “by the
elements of the offense as defined by the hypothetically correct jury charge for the
case” applied to the particular facts of the case. Byrd v. State, 336 S.W.3d 242, 246
(Tex. Crim. App. 2011) (citing Malik v. State 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). In this case, the State was required to prove beyond a reasonable doubt that
appellant, (1) knowing that an investigation was pending or in progress, (2) altered,
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destroyed or concealed a document, record or thing, (3) with intent to impair its legibility
or availability as evidence in the investigation. TEX. PENAL CODE ANN. § 37.09(a)(1);
Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008).
C. Discussion
Appellant argues that the State did not adduce sufficient evidence to prove that
he actually possessed a controlled substance that he destroyed by swallowing.
Appellant also reiterates his testimony from the trial court in which he claimed the
charges were a “cover up” created by police to justify using pepper spray and physically
assaulting him and points out that the State was unable to produce any trace of the
controlled substance that he allegedly swallowed.
While appellant is correct that the arresting officers were unable to recover the
substance believed to be cocaine, we find that the State has produced sufficient
circumstantial evidence from which a reasonable fact finder could have found that
appellant possessed cocaine on the night in question and that appellant, knowing that
an investigation was in progress, destroyed the cocaine with intent to impair its
availability as evidence. Officer Hobbs testified that he observed a baggie made of
clear plastic that contained a “white or beige rock-like substance” within appellant’s
mouth. He further testified that, based on his experience working as a police officer,
cocaine was commonly packaged in that exact manner. Officer Rubelmann confirmed
both of Hobbs’s observations about the baggie in appellant’s mouth and that cocaine is
routinely packaged in that manner.
Appellant testified that he did not posses any narcotics that night, but it was the
role of the trial court to determine how much weight, if any, to give to conflicting
testimony, and we may not, as appellant requests, second guess the trial court’s
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determination. See Garcia, 367 S.W.3d at 687 (explaining that the fact finder is the
“sole judge of witnesses' credibility and the weight to be given testimony”) (internal
quotation marks omitted). We hold that the evidence is sufficient for a rational finder of
fact to have found appellant guilty of the crime of tampering with evidence beyond a
reasonable doubt. Our decision is consistent with our own precedent and that of other
courts of appeals that have upheld convictions for tampering with evidence on similar
facts. See, e.g., Barrow v. State, 241 S.W.3d 919, 922–23 (Tex. App.—Eastland 2007,
pet. ref’d) (affirming tampering conviction where evidence showed appellant swallowed
a “rock-like” substance after being questioned about it during a traffic stop and
instructed by police to spit it out); see also McElroy v. State, No. 13-10-174-CR, 2011
WL 345932, at *2–3 (Tex. App.—Corpus Christi Feb. 3, 2011, no pet.) (mem. op.) (not
designated for publication) (affirming tampering conviction on facts very similar to the
present case). We overrule appellant’s sole issue.
D. Modification
The State also directs our attention to a clerical error. The judgment of conviction
erroneously recites that appellant plead guilty to the charged offense and “true” to the
enhancement paragraph. This Court has the power to modify a judgment of the trial
court if it has the necessary information to do so. TEX. R. APP. P. 43.2(b); Ramirez v.
State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet. ref’d). Because the record
clearly reflects that appellant plead not guilty to the charged offense and did not plea to
the enhancement paragraph, we modify the judgment accordingly.
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III. CONCLUSION
Having overruled appellant’s sole issue, we modify the trial court’s judgment to
reflect that appellant plead not guilty to the charged offense, and that he made no plea
to the enhancement paragraph, and affirm as modified.
_______________________
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of March, 2013.
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