Robert Dale Hines v. State ( 2017 )

Opinion filed October 31, 2017
In The
Eleventh Court of Appeals
__________
No. 11-15-00237-CR
__________
ROBERT DALE HINES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 25861A
OPINION
In a three-count indictment, the grand jury indicted Robert Dale Hines for
tampering with evidence by concealment, possession of more than one gram of
methamphetamine, and evading arrest. TEX. PENAL CODE ANN. § 37.09(c), (d)(1)
(West 2016); TEX. HEALTH & SAFETY CODE ANN. § 481.115(a),(c) (West 2017);
PENAL § 38.04.
At trial, the State abandoned the third count, and the trial court dismissed it.
The jury found Appellant guilty of the first two counts, and upon a plea of true to an
enhancement allegation, the trial court assessed punishment and sentenced Appellant
to twenty years’ confinement for each conviction. The trial court ordered that the
two sentences are to run concurrently.
Appellant raises five issues on appeal. First, Appellant argues that the
evidence was insufficient to support the conviction for tampering with evidence.
Second, Appellant challenges the sufficiency of the evidence for possession of
methamphetamine, more than one gram but less than four grams. Third, Appellant
complains that the trial court erroneously denied a for-cause challenge to a
veniremember. Fourth, Appellant maintains that an error in the jury charge caused
him egregious harm. Fifth, Appellant takes the position that, if we reverse the
conviction on only one count, Appellant is entitled to a new punishment hearing.
We affirm.
We will first address Appellant’s third issue concerning the trial court’s denial
of his for-cause challenge to veniremember Robert Armstrong.
During voir dire, Appellant’s trial counsel questioned the venire panel about
whether each person could maintain the presumption of innocence if a defendant
chooses not to testify. In response, Armstrong said that he had the tendency to view
the decision not to testify as an indication of guilt. Others on the panel similarly
acknowledged their difficulty with the Fifth Amendment right against self-
incrimination. The trial court then asked whether those panelists could follow the
instruction to refrain from holding Appellant’s failure to testify against him.
Although others indicated that they could not follow the instruction, Armstrong
indicated that he could.
After the trial court denied Appellant’s challenge, Appellant requested an
additional peremptory strike. The trial court also denied that request. Appellant
identified an empaneled juror against whom he would have used the additional
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strike. Appellant properly preserved this issue for our review. See Green v. State,
934 S.W.2d 92, 105 (Tex. Crim. App. 1996).
We review a trial court’s ruling on a challenge for cause with considerable
deference because the trial court is in the best position to evaluate the demeanor and
responses of a prospective juror. Gardner v. State, 306 S.W.3d 274, 295–96 (Tex.
Crim. App. 2009). We may reverse a trial court’s ruling on a challenge for cause
only if the trial court clearly abused its discretion. Id. at 296. When the answers of
the challenged venire member are vacillating, unclear, or contradictory, we accord
particular deference to the trial court’s decision. Id. at 295; In re M.R., No. 11-08-
00155-CV, 2010 WL 1948286, at *2 (Tex. App.—Eastland May 13, 2010, pet.
denied) (mem. op.).
A defendant may raise a for-cause challenge against a veniremember who
expresses a bias or prejudice “against the law upon which either the State or the
defense is entitled to rely.” Gardner, 306 S.W.3d at 295. The dispositive question
is whether the bias or prejudice would substantially impair the prospective juror’s
ability to carry out the oath and instructions in accordance with the law. Id.; M.R.,
2010 WL 1948286, at *2. The proponent of a challenge for cause carries the burden
of establishing that the challenge is proper. Gardner, 306 S.W.3d at 295. The
proponent does not meet this burden until the proponent shows that the
veniremember understood the requirements of the law and could not overcome his
prejudice well enough to follow the law. Id.
Here, after Armstrong acknowledged that he would have drawn an adverse
inference from a defendant’s decision not to testify, the trial court further explained
what the law requires. Because Armstrong did not express any further difficulty
with following the law after the trial court gave its instruction, the trial court did not
err when it denied Appellant’s challenge for cause. See Capello v. State, 775 S.W.2d
476, 489 (Tex. App.—Austin 1989, pet. ref’d) (holding no error existed where six
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veniremembers initially expressed concerns about a defendant’s decision not to
testify but then expressed no more concern after the court instructed them on the
law). We overrule Appellant’s third issue.
Next, we address whether the evidence presented at trial was sufficient to
convict Appellant of possession of more than one gram but less than four grams of
methamphetamine. We hold that the evidence was sufficient.
At the guilt/innocence phase of trial, the State called as witnesses the two
police officers who arrested Appellant and the forensic scientist who examined the
substance found in the vehicle.
When the police initiated a stop of the vehicle driven by Appellant, he turned
a corner, stopped, got out, and walked away. The police asked Appellant to come
back to the vehicle, but Appellant denied that he was the driver and kept walking.
The police apprehended Appellant and searched him. They initially found
marihuana in Appellant’s pockets. Then they searched Appellant’s vehicle and
found more marihuana and over two grams of methamphetamine under the driver’s
seat. Appellant told the police officers that he was not the owner of the vehicle, but
one of the officers testified that he saw Appellant driving the vehicle and that no one
else was inside it.
The officers arrested Appellant, placed him in the backseat of the patrol car,
and took him to jail. At the jail, the police collected about 0.21 grams of
methamphetamine from the back seat of the patrol car. A video recording from a
camera focused on the backseat showed Appellant putting his left hand into his
pocket and moving around the backseat. The police inspected and photographed
Appellant’s hands and saw a white substance on Appellant’s knuckles and in his
cuticles. One officer testified that he thought the substance from the backseat could
be either methamphetamine or a drug called “bath salts.”
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The State’s forensic scientist testified that she was certain that both the
substance from Appellant’s vehicle and the substance from the backseat of the patrol
car contained methamphetamine. She could not determine that the substances were
identical, but as Appellant appropriately concedes on appeal, “we have pictures of
meth scattered around the backseat, as well as an emptied baggie.”
Appellant argues that the evidence is insufficient because “there are
inadequate affirmative links between [him] and the methamphetamine.” To support
his argument, Appellant points to the fact that the methamphetamine was hidden
under a seat in a vehicle owned by someone else, and he argues that there was a
“lack of physical evidence.”
We review the sufficiency of the evidence, whether denominated as a legal or
a factual sufficiency claim, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we review all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and any
reasonable inferences from it, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
In cases involving unlawful possession of a controlled substance, the State
must prove that the accused exercised care, custody, control, or management over
the substance and that the accused knew that the matter possessed was contraband.
Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Martin v. State, 753
S.W.2d 384, 386 (Tex. Crim. App. 1988). When the accused does not have exclusive
possession of the place where the contraband was found, the evidence must link the
accused to the contraband and establish that the accused’s connection with the
contraband was more than fortuitous. Evans v. State, 202 S.W.3d 158, 161–62 (Tex.
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Crim. App. 2006); Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. [Panel
Op.] 1981).
We consider several nonexclusive factors when determining whether there are
links between the accused and the controlled substance: (1) the accused’s presence
when the search was executed; (2) whether the contraband was in plain view; (3) the
accused’s proximity to and the accessibility of the contraband; (4) whether the
accused was under the influence of a controlled substance when he was arrested;
(5) whether the accused possessed other contraband when he was arrested;
(6) whether the accused made incriminating statements; (7) whether the accused
attempted to flee; (8) whether the accused made furtive gestures; (9) whether there
was an odor of contraband; (10) whether other contraband or drug paraphernalia was
present; (11) whether the accused owned or had the right to possess the place where
the drugs were found; (12) whether the place where the drugs were found was
enclosed; (13) whether the accused was found with a large amount of cash; and
(14) whether the conduct of the accused indicated a consciousness of guilt. Evans,
202 S.W.3d at 162 n.12.
Here, viewing the evidence in a light most favorable to the verdict, the
majority of the factors weigh in favor of the State. The police saw only Appellant
in the vehicle and searched it after making the arrest. Appellant’s individual
proximity to the contraband at the time of the arrest makes it at least somewhat likely
that Appellant, instead of a third person, possessed the methamphetamine. Although
the contraband was not in plain view, it was under the driver’s seat where Appellant
sat—within close proximity. The police found marihuana in Appellant’s pocket and
methamphetamine in the backseat of the patrol car where Appellant sat on the way
to the jail. Appellant’s possession of multiple controlled substances, including a
smaller amount of methamphetamine, indicates he likely had the criminal intent to
possess the larger amount of methamphetamine found under the driver’s seat of the
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vehicle that he drove. Although Appellant did not own the vehicle, viewing the
evidence in the light most favorable to the verdict, the fact that Appellant’s girlfriend
allowed him to drive the car supports the inference that he was in control of the
contents of the vehicle. Appellant physically distanced himself from the vehicle and
denied he was the driver. While he was in the backseat of the patrol car, Appellant
furtively gestured with his hands as he discarded methamphetamine. See Blanton v.
State, No. 05-05-01060-CR, 2006 WL 2036615, at *2 (Tex. App.—Dallas July 21,
2006, pet. ref’d) (not designated for publication) (reasoning that, “from his
discarding the bag containing cocaine, the jury could also infer consciousness of
guilt and thus knowledge”). Appellant’s words and actions evinced a consciousness
of guilt.
Given the overwhelming weight of the factors favoring the verdict, we hold
that the evidence was sufficient to affirmatively link Appellant to the
methamphetamine. We overrule Appellant’s second issue.
Last, we address Appellant’s first, fourth, and fifth issues. In his first issue,
Appellant asks us to review whether the evidence was sufficient to convict Appellant
for tampering with evidence by concealing methamphetamine. We again review the
sufficiency of the evidence under the Jackson standard. Jackson, 443 U.S. at 319;
Isassi, 330 S.W.3d at 638.
The State introduced into evidence the entire video of him in the backseat of
the patrol car. The video showed that the police buckled Appellant into a three-point
seatbelt in the backseat with his hands cuffed behind his back. Despite these
restraints, Appellant maneuvered his hands to his back pockets a few times. With
his hands behind his back, Appellant stretched his body and moved himself around
the backseat. Although the video does not show exactly what Appellant had in his
hands, photographs showed an empty baggie and methamphetamine scattered on the
backseat.
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Under Section 37.09 of the Texas Penal Code, a person commits the offense
of tampering with evidence when that person, “knowing that an offense has been
committed, alters, destroys, or conceals any record, document, or thing with intent
to impair its verity, legibility, or availability as evidence.” PENAL § 37.09(d)(1).
This statute requires proof of three elements: the defendant (1) knew about an
offense; (2) concealed, altered, or destroyed a thing; and (3) intended to impair the
use of that thing as evidence. Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim.
App. 2008); Ramirez v. State, No. 11-11-00077-CR, 2013 WL 600270, at *3 (Tex.
App.—Eastland Feb. 17, 2013, pet. ref’d) (mem. op., not designated for publication).
Appellant’s challenge implicates the second element. Appellant concedes that
“[e]vidence of at least attempted destruction or alteration is strong,” so there is no
dispute about the sufficiency of the evidence to prove Appellant’s knowledge or
intent. Appellant argues that the indictment only mentioned that Appellant
concealed evidence and, therefore, precludes a conviction grounded upon the
statutory variances of altering or destroying the evidence. We agree with this much.
“[T]he sufficiency of the evidence is measured by the specific alternative elements
that the State has alleged in the indictment.” Cada v. State, 334 S.W.3d 766, 773–
74 (Tex. Crim. App. 2011); see Rabb v. State, 434 S.W.3d 613, 618–19 (Tex. Crim.
App. 2014) (Cochran, J., concurring) (“[T]he State lost this conviction because it did
not pay sufficient attention to its pleading. . . . [T]here is . . . a difference between
‘concealing,’ ‘altering,’ and ‘destroying’ evidence. . . . And that is why a prosecutor
might allege all three criminal acts in its indictment.”).
Appellant argues that, if we consider only whether Appellant concealed
methamphetamine, the evidence is insufficient because no evidence showed that
Appellant “did anything other than expose that which was initially hidden on his
person and attempt to alter or destroy it.” We disagree with Appellant’s
characterization of the evidence.
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To determine whether Appellant’s conduct fit the statutory term “conceal,”
we interpret the statute based on its plain meaning. Williams v. State, 270 S.W.3d
140, 146 (Tex. Crim. App. 2008). “In the absence of statutory definitions, ‘we turn
to the common, ordinary meaning of that word.’” Id. (quoting Olivas v. State, 203
S.W.3d 341, 345 (Tex. Crim. App. 2006)). Merriam-Webster’s Collegiate
Dictionary provides two definitions for “conceal”: (1) “to prevent disclosure or
recognition of” and (2) “to place out of sight.” Conceal, MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY (11th ed. 2004). Under the first definition, invisibility is
not a prerequisite. A thing can be concealed merely by making it unrecognizable or
unnoticeable. Under either definition, however, a dispositive inquiry is whether law
enforcement noticed the object before the defendant tried to hide it and maintained
visual contact. See Stuart v. State, No. 03-15-00536-CR, 2017 WL 2536863, at *4
(Tex. App.—Austin June 7, 2017, no pet.) (mem. op., not designated for
publication); Gaitan v. State, 393 S.W.3d 400, 401–02 (Tex. App.—Amarillo 2012,
pet. ref’d).
For example, in Stuart, the defendant placed knives under a box in a cluttered
bedroom. Stuart, 2017 WL 2536863, at *3. Because the “police were unable to see
the knives until they lifted the box covering them,” the knives were hidden from
sight or recognition. Id. Thus, because law enforcement did not notice the knives
before the defendant hid them, the evidence was sufficient to prove the defendant
concealed the knives. Id. at *4.
In Gaitan, the police saw the defendant discard a metal object “into the night”;
other people at the scene of the investigation “impeded the officer’s search for the
discarded item”; and the defendant “told the officers that he was merely throwing
away a beer can.” Gaitan, 393 S.W.3d at 401. The police eventually found the
object, which turned out to be a gun. Id. Because law enforcement did not maintain
visual contact with the gun and had to search for it after the defendant threw it away,
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a rational juror could have inferred that the defendant temporarily concealed the gun.
See id. at 402.
By contrast, in Blanton, the evidence was insufficient to prove tampering by
concealment. Blanton, 2006 WL 2036615, at *2. The defendant threw a bag
containing cocaine from his car window. Id. Because this action only exposed the
cocaine to the officer’s view, instead of hiding it, the evidence did not show that the
defendant concealed anything. See id.
In this case, the evidence was sufficient to prove concealment because it
showed that Appellant scattered the methamphetamine underneath his body in the
backseat of the patrol car and that the police did not notice it until after he got out at
the jail. Unlike Blanton, the arresting officers did not immediately recognize or see
the methamphetamine discarded by Appellant. Instead, it remained hidden
underneath his body until he got out of the backseat. The sequence of events is
similar to Stuart because the police did not find the methamphetamine underneath
him on the seat until they removed him from the patrol car. Therefore, Appellant’s
conduct fit the definition of “conceal” because his affirmative act hid the
methamphetamine from view before the police noticed it.
Even if we assume that Appellant’s image on the video counted for the
purpose of whether the police noticed the methamphetamine, the recording did not
clearly show the substance throughout Appellant’s ride to the jail. As in Gaitan,
where the defendant temporarily hid evidence by throwing it into the night so that
the police had to look for it, Appellant at least temporarily hid the methamphetamine
by scattering it under his body in the backseat, where it remained hidden from the
view of the arresting officers and the camera lens during the ride to the jail.
Therefore, viewing the evidence in a light favorable to the verdict, we conclude that
the evidence was sufficient to prove that Appellant tampered with evidence.
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Appellant contends that mandatory precedent forecloses the conclusion that
we have reached. Appellant cites Thornton v. State, 425 S.W.3d 289 (Tex. Crim.
App. 2014), in which the Court of Criminal Appeals reviewed whether the evidence
was sufficient for an appellate court to reform a judgment to “attempted tampering
with evidence.” Thornton, 425 S.W.3d at 292.
The Thornton court analyzed whether the defendant had the specific intent
necessary to reform the judgment and noted that “not every act of discarding an
object evinces an intent to impair the availability of that object as evidence in a later
investigation or proceeding.” Id. at 304. The “most inculpating inference the
evidence would support” in some cases may be “that the accused simply intended to
dispossess himself of the object in order to more plausibly disclaim any connection
to it.” Id. The court further explained in a footnote that it did not disagree that
“evidence of a person throwing down contraband during a police pursuit or detention
is [in]sufficient, by itself, to constitute either concealment or attempted
concealment[.]” Id. at 304 n.77 (quoting id. at 314 (Cochran, J., dissenting))
(alterations in original). On the facts before it, however, the court held that evidence
of the defendant stealthily abandoning a small, translucent pipe on a sidewalk in a
dimly lit area was sufficient to prove attempted concealment. Id. at 304–06.
Appellant argues that Thornton endorsed the reasoning in Hollingsworth v.
State, 15 S.W.3d 586 (Tex. App.—Austin 2000, no pet.), and conflicts with our
holdings in Collier v. State, 254 S.W.3d 576, (Tex. App.—Eastland 2008), pet.
dism’d, improvidently granted, 284 S.W.3d 866 (Tex. Crim. App. 2009), and
Evanoff v. State, No. 11-09-00317-CR, 2011 WL 1431520 (Tex. App.—Eastland
Apr. 14, 2011, pet. ref’d) (mem. op., not designated for publication).
In Collier, we declined to follow Hollingsworth, in which the Austin court
had held that evidence of a defendant evading the police with cocaine in his mouth
was insufficient to prove concealment because cocaine is commonly carried that
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way. Collier, 254 S.W.3d at 578; Hollingsworth, 15 S.W.3d at 590. On similar facts
in Collier, we held that this evidence was sufficient to prove concealment because a
reasonable jury could infer from a defendant’s surreptitious behavior that the
contraband was carried in the mouth to conceal it from police. Collier, 254 S.W.3d
at 578; see Evanoff, 2011 WL 1431520, at *4–5 (noting disagreement with
Hollingsworth but holding that, “even under Hollingsworth,” the evidence was
sufficient to prove concealment where the defendant removed contraband from the
officer’s sight by fleeing from arrest).
We do not find our decisions in Collier, Evanoff, or this case to be in conflict
with Thornton. To the extent that Hollingsworth conflicts with our holding in this
case, we decline to follow it. Appellant scattered methamphetamine underneath his
body in the backseat of the police car to prevent the police from finding it during the
inevitable search at the jail. As in Thornton, “we perceive the evidence in this case
to show more than a mere ‘throwing down [of] contraband,’ so that that act does not
stand ‘by itself.’” Thornton, 425 S.W.3d at 305 n.77 (alteration in original).
Because we find the evidence sufficient to support the tampering conviction,
we do not address whether reformation to attempted tampering would be
appropriate. We overrule Appellant’s first issue.
Reviewing Appellant’s fourth issue, we consider whether the trial court’s jury
charge was erroneous. In the indictment, the State specifically alleged that Appellant
“intentionally and knowingly conceal[ed] a tangible thing, to-wit:
METHAMPHETAMINE,” omitting any allegations that Appellant might have
“altered” or “destroyed” evidence. At trial, after the State’s case-in-chief, the trial
court ordered a recess until the next day, informing the jurors that the lawyers would
work on the charge. The next day, the trial court submitted the jury charge to the
parties on the record, and Appellant’s trial counsel replied, “No objections, Your
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Honor.” In both the abstract and application paragraphs, the charge included all
three means of violating the statute: “alter, destroy[,] or conceal.”
We review a jury charge issue under a two-step process. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). We first determine whether an error
exists. Id. Then, if we find error, we analyze that error for harm. Id. If Appellant
fails to object to the charge, as here, we will reverse only if the record shows
“egregious harm” to Appellant. Id. at 743–44. Errors that result in egregious harm
are those that affect “the very basis of the case,” “deprive the accused of a ‘valuable
right,’” or “vitally affect [a] defensive theory.” Almanza v. State, 686 S.W.2d 157,
172 (Tex. Crim. App. 1985).
On the first step of the Almanza test, Appellant argues that the jury charge was
erroneous because it, “viewed as a whole, authorize[d] the jury to find [Appellant]
guilty of tampering based on three theories when only one, concealment, [was]
allowed by the indictment.” A correct jury charge “is authorized by the indictment.”
Cada, 334 S.W.3d at 773 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997)). Although “conceal,” “destroy,” and “alter” have some overlap in
meaning, “the words chosen by the Legislature in defining this offense each have a
distinct purpose.” See Rabb, 434 S.W.3d at 617. By including the words “alter” and
“destroy,” the jury charge erroneously added theories of criminal liability that were
not authorized by the indictment. We therefore agree that error existed.
On the second step of the Almanza analysis, Appellant argues that the
evidence of concealment was insufficient and that the State emphasized alteration
and destruction during closing arguments. In response, the State argues that the
evidence presented at trial and the closing argument focused on only one question:
“whether [the methamphetamine] was . . . placed there by the officers, or whether
appellant put it there with the intent of concealing it so it would not be found in his
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pocket at the jail.” We agree with the State that the error did not cause egregious
harm.
To determine whether harm was egregious under Almanza, we consider four
factors on a case-by-case basis: (1) the jury charge, (2) the state of the evidence,
(3) the parties’ arguments, and (4) other relevant information in the record.
Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). Harm is egregious
only if the balance of the factors tends to show that the error caused “actual rather
than theoretical harm.” Id. (quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim.
App. 2011)).
The first factor weighs in favor of finding egregious harm. The jury charge
failed to track the language of the indictment in the application paragraph. The
application paragraph “is the ‘heart and soul’ of the jury charge.” Vasquez v. State,
389 S.W.3d 361, 367 (Tex. Crim. App. 2012) (quoting Gray v. State, 152 S.W.3d
125, 128 (Tex. Crim. App. 2004)). The error in the application paragraph taints the
entire jury charge and weighs in favor of finding egregious harm.
The second factor weighs heavily against finding egregious harm. The
testimony of the officers and the video evidence showed that Appellant effectively
hid the methamphetamine from view of the police by scattering it in the backseat of
the patrol car underneath his body. This supports the inference that Appellant hoped
that the evidence would remain hidden from the police at the jail. The arresting
officers did not see the methamphetamine until they removed Appellant from the
backseat of the patrol car at the jail. The video showed Appellant digging in his
pockets and moving around the backseat, but the methamphetamine was not visible
on the video. And Appellant scattered the methamphetamine underneath his body.
The fact that Appellant disbursed the methamphetamine into smaller portions under
his body creates a strong inference that Appellant intended to make the
methamphetamine less visible. Therefore, the probative value of the evidence
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focused primarily upon the authorized theory of concealment and weighs heavily
against finding egregious harm.
The third factor weighs only slightly in favor of egregious harm. The
arguments of the parties created some potential that the jury could have considered
an unauthorized theory of liability. Appellant’s trial counsel read the jury charge
and defended against all three theories during closing argument. The State concedes
that the prosecution mentioned alteration as a potential theory of the case during voir
dire. The prosecutor also repeated the erroneous jury charge during closing
arguments. In characterizing Appellant’s conduct in the backseat of the patrol car,
the prosecutor said, “If you watch the video, he really moves all over that seat. I’m
amazed it stayed in any portion. I’m amazed that you’ve got anything left that stayed
in the seat as much as [Appellant] is moving.” The dictionary definition of “alter,”
used as a transitive verb as it is in the statute, is “to make different without changing
into something else.” Alter, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th
ed. 2004). Based on the ordinary meaning of “alter” and the prosecutor’s closing
argument, a rational juror could potentially infer that Appellant altered the
methamphetamine by changing the portion of the substance remaining in the seat.
However, the thrust of the prosecutor’s closing argument focused on the
authorized theory of concealment. In summarizing the argument, for example, the
prosecutor said, “This is a situation where you decide where [the evidence] came
from. Police officers put it in the backseat, picked out [Appellant] and decided to
pick on him, or the man was trying to dump it so that it couldn’t be used against him
before you 12.” Similarly, Appellant’s trial counsel implied in his closing argument
that the police could have planted the methamphetamine on Appellant by pointing
out that the police placed their hands inside Appellant’s pockets during the search
and that the video did not record the search. This is the defensive theory that the
15
State primarily contested during closing arguments, focusing on whether Appellant
“dumped” the methamphetamine.
Considering the arguments of the parties as a whole, therefore, the defensive
theories addressing the unauthorized statutory alternative were more incidental to
the State’s case. When the error relates to an incidental defensive theory rather than
an obviously contested issue, the harm is less likely to be egregious. See Hutch v.
State, 922 S.W.2d 166, 172–73 (Tex. Crim. App. 1996), overruled on other grounds
by Gelinas v. State, 398 S.W.3d 703, 708 (Tex. Crim. App. 2013). Because the
prosecution’s argument focused on whether Appellant hid the evidence, the
unauthorized theories were incidental and less likely to cause actual harm to
Appellant. Therefore, although the parties’ closing arguments created the potential
for harm, we impute less weight to this factor because the effect was incidental.
The fourth factor weighs against finding egregious harm. Appellant did not
object to a jury charge that simply followed the pattern of the statute, and the
prosecution’s argument focused on the theory that Appellant “dumped” the
methamphetamine, which fits the authorized theory of concealment. Therefore, the
context of the record indicates that the error was likely deemphasized to the jury and
reduces the likelihood that actual harm befell Appellant.
On balance, the two factors weighing against egregious harm are heavier than
the two factors on the other side of the scale. Overall, the probative weight of the
evidence strongly supported the prosecution’s primary theory, which was authorized
by the indictment and emphasized at trial. The jury was not likely distracted or
divided over the unauthorized theories. Although a possibility of harm existed, the
balance of the factors shows that the potential for harm likely remained in the realm
of theoretical, rather than actual, harm. We overrule Appellant’s fourth issue.
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In his fifth issue, Appellant requests a new punishment hearing contingent
upon the reversal of his conviction on at least one count. Because we have overruled
all of Appellant’s other issues, we do not address the fifth issue.
We affirm the judgments of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
October 31, 2017
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
17