Clifton Young v. State ( 2010 )

NO. 07-09-0229-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 30, 2010
______________________________
CLIFTON YOUNG,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_______________________________
FROM THE 137th DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2008-421,326; HON. CECIL G. PURYEAR, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Clifton Young was convicted of tampering with evidence. In challenging that
conviction, he contends the evidence is insufficient to sustain it and that the trial court
erred in failing to grant his motion for mistrial during the punishment phase. We affirm
the judgment.
Background
On September 21, 2008, Officer Brian Johnston was watching a house in
Lubbock known for drug activity. He observed appellant drive up to the residence, go
inside for a few minutes, and then leave. In driving away, appellant failed to signal his
intent to enter the lane of travel and failed to stop at a stop sign. Johnston executed a
traffic stop and noticed that appellant was nervous and lacked a valid driver’s license.
While speaking to appellant, Johnston also noticed a rocklike substance in the
corner of appellant’s mouth. The officer’s past experience with rock cocaine caused
him to believe that the substance was cocaine. He had appellant get out of the vehicle
and asked him to spit out the substance. Johnston then observed that appellant
appeared to have swallowed a portion of the rock because there were crumbs on his
mouth and the rock looked smaller. He explained to appellant the difference between
tampering with evidence and possession of drugs. Johnston tried to place his asp in
appellant’s mouth to keep him from swallowing the rest but was unsuccessful.
Johnston warned appellant that he could possibly lose his life by swallowing the drugs.
Appellant finally admitted that he had swallowed “a dub” meaning a $20 piece of crack.
The officer transported appellant to the emergency room.
When appellant provided a history to the emergency room nurse, he informed
her he was being chased by the cops and swallowed cocaine to hide the evidence.
Appellant was given activated charcoal to absorb the cocaine or help him to vomit the
contents of his stomach. At trial, appellant denied he had anything in his mouth and
claimed he went along with everything the officer said hoping he would be let go when it
was discovered that there was no cocaine.
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Sufficiency of the Evidence
We review the sufficiency of the evidence under the standard discussed in
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Brooks v.
State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS 1240 at *25-26 (Tex. Crim. App.
October 6, 2010). Appellant contends the evidence is insufficient because it shows that
he destroyed the evidence as opposed to concealing it and because the only
investigation in progress was a traffic investigation.
Appellant was charged with intentionally or knowingly concealing a piece of
evidence while knowing that a police investigation was in progress and with the intent to
impair the availability of the evidence in the investigation. See TEX. PENAL CODE ANN.
§37.09(a)(1) (Vernon Supp. 2010) (defining tampering with evidence to occur when a
person, knowing that an investigation or official proceeding is pending or in progress,
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). To
conceal means to prevent disclosure or recognition of or to place out of sight. Lujan v.
State, No. 07-09-0036-CR, 2009 Tex. App. LEXIS 7121, at *5 (Tex. App.–Amarillo
September 9, 2009, no pet.) (not designated for publication). It also means to hide or
keep from observation, discovery, or understanding. Hollingsworth v. State, 15 S.W.3d
586, 595 (Tex. App.–Austin 2000, no pet.). By swallowing cocaine that might be
observable to the officer during a conversation, a rational trier of fact could find beyond
a reasonable doubt that appellant sought to prevent its disclosure or to place it out of
sight. See Lewis v. State, 56 S.W.3d 617, 625 (Tex. App.–Texarkana 2001, no pet.)
(finding the evidence sufficient to show the defendant concealed evidence when he put
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it in his mouth and swallowed it). There was no showing that the rock of cocaine would
necessarily be destroyed by swallowing it.1 Moreover, evidence was before the jury that
appellant admitted to the officer that he had swallowed cocaine, and appellant told
hospital personnel that he swallowed cocaine in an attempt “to hide evidence.”
Appellant relies upon Hollingsworth v. State, in which the officers were
investigating a knife fight when they observed the defendant, who fit one of the
descriptions, ordered him to stop, and watched him duck behind a dumpster and spit
out two white objects. Hollingsworth v. State, 15 S.W.3d at 589-90. There was
testimony that persons often carry cocaine in their mouths, and the court found that
there was no evidence that he concealed the cocaine in his mouth in an attempt to
impair its availability as evidence. Id. at 595. Likewise, appellant argues that because
Johnston did not see him place the cocaine in his mouth, he could simply have been
carrying it there.
However, once Johnston saw a white object in appellant’s mouth, he explained to
him the difference between possession of drugs and tampering with evidence and told
appellant to spit it out. In response, appellant swallowed it. These facts are different
from those in Hollingsworth and justify a finding that appellant attempted to conceal the
evidence.
Appellant also argues that the only investigation in progress at the time appellant
swallowed the drug was a traffic investigation and not a narcotics investigation. See
Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.–Houston [1st Dist.] 2004, pet. ref’d)
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A nurse testified that it would pass through the system either by being vomited or through a
bowel movement.
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(holding the evidence was not sufficient to show the officer’s investigation concerned
narcotics when the officer saw the defendant ingesting a white substance as he
approached the defendant’s car as part of a traffic stop); Pannell v. State, 7 S.W.3d
222, 223 (Tex. App.–Dallas 1999, pet. ref’d) (holding that the defendant was not being
investigated for possession of marijuana when the officer saw him throw a marijuana
cigarette and empty a baggie from a car window as he was being stopped for
speeding). However, the title of the investigation and the evidence concealed need not
match as long as the accused intends to impair the availability of the evidence in an
investigation he knows is in progress. Williams v. State, 270 S.W.3d 140, 145 (Tex.
Crim. App. 2008). Furthermore, the jury may infer an accused’s knowledge about the
existence of an ongoing investigation from circumstantial evidence such as acts, words,
and conduct. Lujan v. State, 2009 Tex. App. LEXIS 7121, at *5.
Prior to completely swallowing the drug, appellant was stopped after leaving a
house known for drug activity which appellant admitted at trial. Appellant knew the
officer saw an object in his mouth. The officer explained the difference to appellant
between possession of a narcotic and tampering with evidence. The officer told
appellant to spit out the object. And the officer attempted with his asp to prevent
appellant from swallowing the object. From this, it could rationally be inferred that
appellant knew that a police investigation was in progress and that such investigation
was related to narcotics. See Lewis v. State, 56 S.W.3d at 625 (evidence was sufficient
to show the accused knew an investigation was pending because he refused to spit the
object out or otherwise allow its removal after being ordered to do so). We overrule
appellant’s first two issues.
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Jury Argument
In his third issue, appellant complains of the trial court’s failure to grant his
motion for mistrial due to improper closing argument by the State. That argument
consisted of the prosecutor referring to appellant as “a known drug user, a known drug
paddler [sic].” When appellant objected, the State offered to rephrase without a ruling
from the court. Appellant then requested that the trial court instruct the jury to disregard
the statement which the trial court did. Subsequently, appellant moved for a mistrial on
the basis the statement was “intending to suggest that he was delivering drugs.” That
motion was denied.
We review the trial court’s denial of a motion for mistrial for abuse of discretion.
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). A mistrial is required only
when improper argument is clearly calculated to inflame the minds of the jury and is of
such a character as to suggest the impossibility of withdrawing the impression produced
in the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999);
Brock v. State, 275 S.W.3d 586, 591 (Tex. App.–Amarillo 2008, pet. ref’d). In making
our analysis, we presume that the jury followed the instruction to disregard. Weinn v.
State, 281 S.W.3d 633, 642 (Tex. App.–Amarillo 2009), aff’d, 2010 Tex. Crim. App.
LEXIS 793 (Tex. Crim. App. June 30, 2010); Drake v. State, 123 S.W.3d 596, 604 (Tex.
App.–Houston [14th Dist.] 2003, pet. ref’d).
Appellant complains that new facts were injected into the record when the State
referred to him as a drug peddler. He further relies upon Simpson v. State, 493 S.W.2d
793 (Tex. Crim. App. 1973), in which the State implied through questions asked of a
witness during the punishment phase that the defendant had sold drugs on three
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occasions, although there was no evidence to support that conclusion. Here, the
prosecutor offered to rephrase as soon as the objection was made and, after the court
instructed the jury to disregard, the prosecutor explained that he “meant someone
dealing with the drugs, panhandling, voluntarily consuming them.” This indicates that
the remark was an inadvertent mistake, and no further mention was made of appellant
being a drug dealer. Moreover, appellant was sentenced to a punishment of six years
out of a possible range of two to ten years2 with evidence in the record of several
previous convictions. Under these circumstances, we find that the instruction to
disregard, which we presume was followed, was sufficient to cure the error.
Having overruled appellant’s issues, we affirm the judgment.
Per Curiam
Do not publish.
2
Appellant was also assessed a fine of $5,000 out of a possible $10,000.
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