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Dannie Haywood v. the State of Texas ( 2024 )


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  •                                    IN THE
    TENTH COURT OF APPEALS
    No. 10-23-00194-CR
    DANNIE HAYWOOD,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 278th District Court
    Walker County, Texas
    Trial Court No. 30399
    MEMORANDUM OPINION
    Appellant, Dannie Haywood, appeals from his convictions for tampering with
    evidence and possession of a controlled substance. In three issues, Appellant contends
    the jury charge contained harmful error and the evidence was insufficient to support his
    convictions for tampering with evidence and possession of a controlled substance. We
    affirm.
    Jury Charge
    In his first issue in his initial brief, Appellant asserts the jury charge on count one,
    tampering with evidence, contains fundamental error which harmed him. Specifically,
    he argues that the charge erroneously failed to require a jury determination that an
    investigation was in progress or that Appellant knew of an investigation.
    Count one of the indictment alleged that Appellant did:
    Then and there, knowing that an offense had been committed, namely
    possession of a controlled substance, intentionally and knowingly destroy
    a controlled substance, namely Cocaine, with intent to impair its
    availability as evidence in any subsequent investigation or official
    proceeding related to the offense . . . .
    The jury charge tracked the language in the indictment, which tracked the
    language of Penal Code Section 37.09(d)(1). See TEX. PENAL CODE ANN. § 37.09(d)(1) (A
    person commits an offense if the person, knowing that an offense has been committed,
    alters, destroys, or conceals any thing with intent to impair its availability as evidence in
    any subsequent investigation of or official proceeding related to the offense.). Moreover,
    Section 37.09(d)(1) does not require the State to prove that an investigation was in
    progress or that Appellant knew of an investigation. The jury charge does not contain
    error.
    We note that Section 37.09(a)(1) requires the State to prove the defendant knew an
    investigation or official proceeding was pending or in progress. See id. § 37.09(a)(1).
    Haywood v. State                                                                          Page 2
    Appellant was not indicted under Section 37.09(a)(1). Therefore, Appellant's argument
    is misplaced. We overrule Appellant's first issue.
    Sufficiency of the Evidence
    In his second issue in his initial brief, Appellant contends the evidence is
    insufficient to support the jury's finding of guilt on the charge of tampering with
    evidence. In his sole issue in his supplemental brief, Appellant contends the evidence is
    insufficient to support his conviction for possession of a controlled substance.
    STANDARD OF REVIEW
    In reviewing the sufficiency of the evidence, we view the evidence in the light most
    favorable to the prosecution, to determine whether any rational trier of fact could have
    found the essential elements of the offense beyond a reasonable doubt. Isassi v. State, 
    330 S.W.3d 633
    , 638 (Tex. Crim. App. 2010); Brooks v. State, 
    323 S.W.3d 893
    , 912 (Tex. Crim.
    App. 2010). Because the jury is the sole judge of the witnesses' credibility and the weight
    to be given their testimony, we defer to those determinations. Brooks, 
    323 S.W.3d at 899
    .
    We give deference to the trier of fact's responsibility to fairly resolve conflicts in testimony
    and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex. Crim. App. 2007). If the record supports conflicting inferences, we
    presume that the fact finder resolved the conflict in favor of the prosecution and defer to
    that resolution. Garcia v. State, 
    367 S.W.3d 683
    , 687 (Tex. Crim. App. 2012).
    Haywood v. State                                                                          Page 3
    It is not necessary that the evidence directly prove the defendant's guilt;
    circumstantial evidence is as probative as direct evidence in establishing a defendant's
    guilt, and circumstantial evidence can alone be sufficient to establish guilt. Carrizales v.
    State, 
    414 S.W.3d 737
    , 742 (Tex. Crim. App. 2013). Each fact need not point directly and
    independently to guilt if the cumulative force of all incriminating circumstances is
    sufficient to support the conviction. Hooper, 
    214 S.W.3d at 13
    . Evidence may be sufficient
    to sustain the conviction even if the State does not disprove all reasonable alternative
    hypotheses that are inconsistent with a defendant’s guilt. Wise v. State, 
    364 S.W.3d 900
    ,
    903 (Tex. Crim. App. 2012).
    Tampering With Evidence
    Appellant was indicted for, and found guilty of, destroying cocaine. A person
    commits an offense under Section 37.09(d)(1) if the person: (1) knowing that an offense
    has been committed, (2) alters, destroys, or conceals a thing (3) with intent to impair its
    verity, legibility, or availability as evidence in any subsequent investigation of or official
    proceeding related to the offense. TEX. PENAL CODE ANN. § 37.09(d)(1); Stahmann v. State,
    
    602 S.W.3d 573
    , 576 (Tex. Crim. App. 2020).
    In his first argument under this issue, Appellant asserts there is no evidence he
    had any knowledge of an investigation concerning possession of any drug at the time of
    the alleged destruction. Section 37.09(d)(1), pursuant to which Appellant was indicted,
    tried, and convicted, does not require the State to prove Appellant had knowledge of an
    Haywood v. State                                                                        Page 4
    investigation. Any failure to do so does not impact the sufficiency of the evidence to
    support the jury's finding of guilt on the charge of tampering with evidence.
    Appellant also contends the evidence is insufficient to prove that he destroyed
    cocaine while in custody. He argues that the arresting officer's testimony that she saw
    something in his mouth that was consistent with cocaine raised no more than a possibility
    that he had cocaine in his mouth. He also contends the video evidence controverts the
    officer's testimony that there was "a white substance, all over" Appellant's mouth.
    Officer Ashley Walker was the arresting officer. Appellant was a passenger in a
    vehicle Officer Walker stopped for a traffic violation and the occupants' failure to wear
    seat belts. The video of the stop was introduced into evidence. She released the driver
    and took custody of Appellant.
    Officer Walker testified that the tampering with evidence count was based on her
    observation of Appellant chewing and eating in the back seat of the patrol vehicle.
    During transport to the jail, Appellant "was moving about real fidgety in the back." When
    she opened the back door of her patrol car to get Appellant out of the car at the jail, he
    was leaning over to the passenger side, turned away from her. After Appellant was
    removed from the vehicle, Officer Walker found a substance in the back of the car that
    was later confirmed to be cocaine.
    Officer Walker explained that Appellant was very hard to understand. Because
    he was not able to articulate sentences very well, she asked him if he had something in
    Haywood v. State                                                                      Page 5
    his mouth. When asked to describe what she saw when Appellant opened his mouth,
    Officer Walker explained:
    [I]t's just chunky, off white substance, all over the tongue and
    cheeks in his mouth. It looks like somebody crushed up a rock
    all over his tongue and his cheeks. It was very similar to the
    rock that I was able to preserve out of the back seat of the
    patrol vehicle.
    At the time she saw the substance in his mouth, she did not know what he had
    swallowed. She stated that she had witnessed him chewing and knew he had ingested
    something. She asked him to open his mouth again and confirmed there is a rock-like
    substance all over his mouth. She attempted to take a picture, but Appellant did not
    allow it.
    On cross examination, she said she observed the same substance in his mouth as
    she found in the patrol car. The substance she recovered from the back seat of the patrol
    vehicle matched what was in his mouth and what he was attempting to destroy.
    Video from Officer Walker's body camera shows Appellant exiting the patrol car
    and walking to the door of the jail. It also shows that Appellant reluctantly and only
    briefly opened his mouth when instructed. Officer Walker was unable to photograph
    inside his mouth. Due to the angle of the body camera, the video does not show what
    Officer Walker was able to see inside Appellant's mouth.
    The jury, sole judge of the witness's credibility, was entitled to believe Officer
    Walker when she testified that Appellant chewed on a white, rock-like substance. See
    Haywood v. State                                                                   Page 6
    Brooks, 
    323 S.W.3d at 899
    . The jury may draw reasonable inferences from the fact that a
    substance conclusively identified as cocaine was found in the back of the patrol car and
    Officer Walker's testimony that the substance she saw in Appellant's mouth matched
    what she found in the car. See Hooper, 
    214 S.W.3d at 13
    . Although circumstantial, the
    jury could infer that Appellant destroyed cocaine by chewing and ingesting it while in
    the back of the patrol car. 
    Id.
     Accordingly, the evidence is sufficient to support a
    conviction for tampering with evidence. See Isassi, 
    330 S.W.3d at 638
    ; Barrow v. State, 
    241 S.W.3d 919
    , 923-24 (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). We
    overrule Appellant's second issue in his initial brief.
    Possession of a Controlled Substance
    Appellant was found guilty of possession of less than one gram of cocaine.
    Appellant contends the State failed to affirmatively link him to the cocaine, which was
    found in the back of the squad car he rode in.
    “Possession” is defined as “actual care, custody, or management.” TEX. HEALTH &
    SAFETY CODE ANN. § 481.002(38). When the accused is not in exclusive possession of the
    place where the substance is found, it cannot be concluded that the accused had
    knowledge of and control over the contraband unless there are additional independent
    facts and circumstances which affirmatively link the accused to the contraband.
    Haywood v. State                                                                     Page 7
    Poindexter v. State, 
    153 S.W.3d 402
    , 406 (Tex. Crim. App. 2005). Presence, or proximity,
    when combined with other evidence, either direct or circumstantial, may be sufficient to
    establish that element beyond a reasonable doubt. Evans v. State, 
    202 S.W.3d 158
    , 162
    (Tex. Crim. App. 2006). Texas courts have considered the following non-exclusive factors
    in determining whether a defendant is sufficiently linked to the contraband to establish
    knowing possession:
    (1) The defendant’s presence when a search is conducted; (2) whether the
    contraband was in plain view; (3) the defendant’s proximity to and the
    accessibility of the narcotic; (4) whether the defendant was under the
    influence of narcotics when arrested; (5) whether the defendant possessed
    other contraband or narcotics when arrested; (6) whether the defendant
    made incriminating statements when arrested; (7) whether the defendant
    attempted to flee; (8) whether the defendant made furtive gestures; (9)
    whether there was an odor of contraband; (10) whether other contraband
    or drug paraphernalia were present; (11) whether the defendant 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
    defendant was found with a large amount of cash; and (14) whether the
    conduct of the defendant indicated consciousness of guilt.
    
    Id.
     at 162 n.12. The number of links or factors is not dispositive. 
    Id. at 162
    . Rather, we
    look to the logical force of all of the evidence. 
    Id.
    Officer Walker testified that, after stopping the vehicle in which Appellant was a
    passenger, she placed the driver in the back of her squad car. Officer Walker explained
    that, on scene at the initial stop, Appellant was not “able to articulate his sentences very
    well,” and she thought he may have something in his mouth. She later removed the
    driver from her vehicle and released him. She then checked the back of her vehicle, found
    Haywood v. State                                                                      Page 8
    nothing, and placed Appellant in the back of her vehicle. She transported him to the jail.
    On the way to the jail, Appellant “was moving about real fidgety in the back.” He moved
    “in a furtive way.” When she opened the door to get him out, he was leaning over toward
    the passenger side, facing the passenger side. After he exited the vehicle, Officer Walker
    searched the back of the vehicle where Appellant was leaning over. In that area, she
    found in plain view a small piece of what later proved to be crack cocaine. Officer Walker
    observed Appellant chewing and saw a white, rock-like substance. The cocaine she saw
    in her vehicle was consistent with what she observed in Appellant’s mouth. When Officer
    Walker tried to take a picture of Appellant’s tongue he closed his mouth. Officer Walker
    testified that there was nothing in the back of her vehicle that Appellant could have put
    in his mouth.
    Based on our review of the evidence, we conclude that several of the factors
    establish a connection between Appellant and the cocaine. Officer Walker explained that
    Appellant was not able to articulate well, and she thought he may have something in his
    mouth. Before Appellant was placed in the vehicle, there was no cocaine visible in the
    vehicle. No one else was in the vehicle between the time Officer Walker checked it and
    when Appellant was placed in it. While he was in the vehicle, Appellant was in close
    proximity to the area where the cocaine was found, and he made furtive gestures during
    the drive to the jail. At the time of the search, Appellant had just been removed from the
    vehicle. The jury could have reasonably inferred that Appellant dropped the cocaine in
    Haywood v. State                                                                    Page 9
    the back of the patrol car. See Hooper, 
    214 S.W.3d at 13
    . Further, Appellant’s failure to
    cooperate when asked to open his mouth could be interpreted as a consciousness of guilt.
    The combined and cumulative effect of all the incriminating circumstances point to
    Appellant’s guilt. See Evans, 
    202 S.W.3d at 162
    . Viewing the evidence in the light most
    favorable to the jury’s verdict, we conclude the evidence is legally sufficient to support
    the jury’s finding that Appellant was guilty of possession of cocaine. See Isassi, 
    330 S.W.3d at 638
    . We overrule Appellant’s sole issue in his supplemental brief.
    Conclusion
    Having overruled Appellant's issues, we affirm the judgments of the trial court.
    STEVE SMITH
    Justice
    Before Chief Justice Gray,
    Justice Johnson, and
    Justice Smith
    (Chief Justice Gray concurs)
    Affirmed
    Opinion delivered and filed September 19, 2024
    Do not publish
    [CR25]
    Haywood v. State                                                                      Page 10
    

Document Info

Docket Number: 10-23-00194-CR

Filed Date: 9/19/2024

Precedential Status: Precedential

Modified Date: 9/20/2024