                           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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