                                                                       ACCEPTED
                                                                  13-15-00287-CR
                                                  THIRTEENTH COURT OF APPEALS
                                                         CORPUS CHRISTI, TEXAS
                                                             9/28/2015 7:30:28 PM
                                                                 Dorian E. Ramirez
                                                                            CLERK


            NO. 13-15-00287-CR

IN THE THIRTEENTH COURT OF APPEALS  FILED IN
                             13th COURT OF APPEALS
        CORPUS CHRISTI, TEXAS
                          CORPUS CHRISTI/EDINBURG, TEXAS
                                9/28/2015 7:30:28 PM
       JUAN TORRES      RODRIGUEZDORIAN E. RAMIREZ
                                        Clerk
              Appellant,

                    VS.

          THE STATE OF TEXAS
                Appellee.

    Appeal from the 36TH Judicial District
        San Patricio County, Texas

         Tr. Ct. No. S-14-3162-CR
  ____________________________________

      BRIEF FOR THE APPELLANT
  ____________________________________


                    Irma M. Sanjines
                    SBN 17635655
                    Wilson Plaza-West, Ste. 504
                    P. O. Box 4005
                    Corpus Christi, TX 78469
                    Tel.: (361)883-6106
                    Fax: (361)883-9650
                    irmasanjines@aol.com

                    Oral Argument Not Requested
                CERTIFICATE OF INTERESTED PERSONS


1.   Parties:

     Juan T. Rodriguez, Appellant
     510 Jabon
     Sinton, TX 78387

     The State of Texas, Appellee
     Honorable Michael E. Wellborn
     San Patricio County District Attorney
     P. O. Box 1393
     Sinton, TX 78387

2.   Counsel for Appellant:

     Trial: David W. Phillips
            P. O. Box 124
            Corpus Christi, TX 78403

     Appeal: Irma Mendoza Sanjines

3.   Counsel for Appellee:

     Trial: Samuel Boyd Smith Jr.
            Assistant District Attorney
            P. O. Box 1393
            Sinton, TX 78387

4.   Judges:

     Honorable Starr Boldrick Bauer, 36th Judicial District Presiding Judge
     Honorable Joel B. Johnson, Trial Judge
     Honorable Patrick L. Flanigan, Sentencing Judge




                                          i
                                          TABLE OF CONTENTS
                                                                                                                      Page

Certificate of Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii-iv

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement Regarding Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         Whether the evidence was sufficient to convict Rodriguez
         of the offense of Tampering with Physical Evidence?

Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-5

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6-7

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7-11

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12




                                                              ii
                                      INDEX OF AUTHORITIES

Cases                                                                                                           Page

Almanza v. State, 686 S.W. 2 157(Tex.Crim.App. 1984) . . . . . . . . . . . . . . . . . . . . 5

Blanton v. State, Nos. 05-05-01060-CR, 2006 Tex.App. LEXIS 6367
      (Tex.App.-Dallas July 21, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Dewberry v. State, 4 S.W. 3d 735, 740 (Tex.Crim.App.1999) . . . . . . . . . . . . . . . . 7

Hunt v. State, 1985 Tex.App. LEXIS 6393(Tex.App.-Houston 1st Dist.
      April 4, 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Jackson v. Virginia, 443 U.S. 307, 319(1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Kitchens v. State, 823 S.W. 2d 256 (Tex.Crim.App. 1991) . . . . . . . . . . . . . . . . . . .5

Lujan v. State, No. 07-09-0036-CR, 2009 Tex.App. LEXIS
      7121 at *6(Tex.App.-Amarillo Sept. 9, 2009) . . . . . . . . . . . . . . . . . . . . . . . .7

Malik v. State, 953 S.W. 2d 234, 240 (Tex.Crim.App. 1997) . . . . . . . . . . . . . . . . . 6

Padilla v. State, 326 S.W. 3d 196, 200 (Tex.Crim.App. 2010) . . . . . . . . . . . . . . . .6

Rabb v. State, 434 S.W. 3d 613 (Tex.Crim.App. 2014). . . . . . . . . . . . . . . . . . . . . 11

Robinson v. State, 1994 Tex.App. LEXIS 3573, 1994 WL 594022
  (Tex.App.-Dallas Oct. 28, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Rotenberry v. State, 245 S.W. 3d583, 588-89(Tex.App.-Fort Worth
  2007, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Stewart v. State, 240 S.W. 3d 872(Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . . 11

Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct 1868(1968). . . . . . . . . . . . . . .9


                                                           iii
Thornton v. State, 377 S.W. 3d 814(Tex.App.-Amarillo 2012) . . . . . . . . . . . . . . . .8


Constitutional Provisions, Statutes and Rules

Tex. Const. art. 5, §1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Tex.Code Crim. Pro. art. 36.19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Tex. Penal Code Ann art. 1.04(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

Tex. Penal Code Ann. art. 6.039a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9-10

Tex. Penal Code Ann. art. 37.09(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. R. App. Proc. 39.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v




                                                          iv
              STATEMENT REGARDING ORAL ARGUMENT

      Appellant is not requesting oral argument because the facts related to the

issue presented are brief and simple and would not be significantly emphasized

and clarified by oral argument and the decisional process would not be aided.

TEX. R. APP. PROC. 39.2.



                 STATEMENT REGARDING JURISDICTION

      The 36th District Court of San Patricio County, Texas and this Court has

subject-matter jurisdiction pursuant to Tex. Penal Code Ann. art. 1.04(a)(1)

because the offense that Rodriguez allegedly committed through his conduct for

which he may be criminally responsible was inside the state of Texas, and within

the county of San Patricio, Texas. The Appellant was given permission to appeal

by the trial court. (CR p. 63).

      The Thirteenth Court of Appeals was created pursuant to authority granted

by Article 5, Section1, Texas Constitution, to hear intermediate criminal appellate

cases arising from the district courts served by its twenty-county area, including

San Patricio County, Texas.




                                          v
                               STATEMENT OF THE CASE

      Appellant, Juan Torres Rodriguez (Rodriguez), was charged in a two-count

indictment with Possession of a Controlled Substance, to-wit: Cocaine less than

one gram, a state jail felony (Count One), and Tampering with Physical Evidence,

a third degree felony (Count Two). (CR p. 6).1

      Rodriguez pled not guilty and was tried by the jury on December 8-9, 2014.

(1RR p. 3).2 The jury found Rodriguez guilty on both counts. (CR pp. 44-45). A

PSI report was ordered and a punishment hearing was scheduled for February 20,

2015. (3RR p. 149). (CR p. 46).

          Rodriguez failed to appear on February 20, 2015. (CR p. 55). On June 29,

2015, the trial court conducted a punishment hearing and sentenced Rodriguez to

eighteen months on Count One and six years on Count Two, concurrently. (CR pp.

81-88)(4 RR p. 18- 20). The trial court certified his right of appeal. (CR p. 63).

      A timely Notice of Appeal followed on June 30, 2015. (CR p. 65).




      1
          CR refers to clerk’s record followed by pagination as prepared by the clerk of the court.
      2
       RR refers to reporter’s record, preceded by volume number and followed by pagination
      established by court reporters, Lisa T. Riley and Katrina Gentry.

                                                  1
                               ISSUE PRESENTED

  Whether the evidence was sufficient to convict Rodriguez of the offense of
                   Tampering with Physical Evidence?


                            STATEMENT OF FACTS

      Rodriguez was arrested on September 3, 2012 for possessing less than one

gram of cocaine and for concealing and attempting to destroy the plastic baggie of

cocaine in his hand with intent to impair its availability as evidence. ( 3 RR p. 24).

The Indictment charging Rodriguez pleads in the conjunctive on Count Two, to

wit: intentionally and knowingly conceal and attempt to destroy a plastic baggie of

suspected cocaine, with intent to impair its availability as evidence in the

investigation. (CR p. 6)

       The defense filed a Motion to Suppress which was never tried to the judge.

(CR pp. 21-23)(3RR p. 17, 59). The record appears to show that defense counsel

was attempting to argue this motion to the jury, i.e. Rodriguez’s illegal detention,

but later clarifies to the trial court that they have abandoned the motion by saying,

“we backed off of that, Judge.” (3 RR p. 59). Instead, the defense’s theory at trial

was that Rodriguez did not have a trespass notice on him at Casa De Oro as the

police claimed, because prior trespass charges had been dismissed. The theory

was that the police knew that these trespass charges were dismissed but continued

                                          2
to harass Rodriguez because he was dating a police officer’s ex-wife. Moreover,

on that night as part of the harassment, the police officers planted the cocaine in

Rodriguez’s hand in order to “frame” Rodriguez and further harass him. ( 3 RR pp.

30-31).

      At trial, Officer Aaron Putnam testified that he saw Rodriguez walking

towards Casa de Oro Apartments where Rodriguez had an active criminal trespass

warning. (3 RR p. 34). He made contact with Rodriguez on that property, asked

him to stop, and Rodriguez stopped. Putnam proceeded to place handcuffs on

Rodriguez and observed a plastic bag in his right hand. At the same time, another

officer arrived who exclaimed, “hey he’s got something in his hands here.” ( 3 RR.

p. 38). Putnam said he later observed Rodriguez pass the baggie from his right

hand to his left hand. He saw Rodriguez clench his fist several times, and it was

his belief that he was attempting to destroy the drug inside the baggie by grinding.

He was able to pry Rodriguez’s hand open and remove a small clear plastic ziploc

baggie containing a tan paste-like substance. ( 3 RR p. 39) ( 4 RR, State’s Exhibit

A, Incident Report #12090034). On cross-examination, Putnam testified that he

didn’t have an active trespass warning in his possession and that he didn’t know

that the alleged charge for trespass had been “no charged” by the county attorney.

( 3 RR p. 48).

                                          3
      Officer Christian Martinez testified he responded to a radio call from

Putnam. When he got to Casa de Oro Apartments he saw Rodriguez in handcuffs

(3 RR p. 65). He saw he had a baggie in his hands immediately upon arrival.

Putnam took out a flashlight and hit the hand and it opened. They found a little

baggie with a substance he didn’t know what it was but it looked like a tan colored

paste. (3 RR p. 67, 4 RR State’s Exhibit A, Incident Report #12090034-2). He

testified that he did not have an active trespass warning for Rodriguez in his

possession. (3 RR p. 72).

      Natalia Sanchez , a forensic scientist and employee with The Texas

Department of Public Safety Crime Lab, testified and described what was retrieved

as a small clear ziptop bag containing an off-white rock substance determined to

be .19 grams of cocaine. (4 RR State’s Exhibit A, Controlled Substance Analysis

Laboratory Report)(3 RR 79-85).

      The Charge to the Jury was prepared by the State and not the trial court. (3

RR p. 128) The Charge omits instructions and/or a definition for “attempted to

destroy”, one of two statutory conducts they alleged in the Indictment. Also, the

State’s closing argument omits “attempted to destroy”, so that it appears that the

State withdrew this allegation as a means of proving Tampering and relied solely

on the statutory conduct of concealment. There was no objection from the defense

                                          4
to the Charge. (CR pp. 38-39) ( 3 RR pp. 141-143). See Almanza v. State, 686 S.

W. 2d 157( Tex. Crim. App. 1984)(jury charge error may be raised for first time

on appeal, but higher harm req’d without trial objection) and Tex. Crim. Proc.

Ann. art. 36.19. A charge to the jury may be in the disjunctive even if indicted in

the conjunctive. See Kitchens v. State, 823 S. W. 2d 256 (Tex. Crim. App. 1991).

      The jury found Rodriguez guilty of Count 1- Possession of Cocaine and

Count 2-Tampering with Evidence. (CR pp. 44-45).



                       SUMMARY OF THE ARGUMENT

      The evidence was sufficient to prove Count I, Possession of Cocaine, but

insufficient to prove Count II, Tampering with Physical Evidence. Rodriguez

admits that he wholeheartedly possessed the drug in his hand to the point that the

officers had to strike his hand to release the drug. But, Rodriguez asserts that he

didn’t conceal the baggie and its contents since it was, at all times, in plain view to

the officers, each of whom instantly viewed the baggie with drugs upon visual

contact with the defendant. Rodriguez never made an overt act to hide the cocaine

inside his clothing, inside his mouth, to throw it, or drop it along the way, when he

initially viewed Officer Putnam, the first officer on the scene. Moreover, the

evidence reflects that the trespass charge against him had been previously

                                           5
dropped, so that Rodriguez, believing he was not trespassing, did not have a

knowledge of an investigation and the State failed to prove beyond a reasonable

doubt that Rodriguez knew an investigation was in progress prior to any alleged

attempt to conceal and that he intended to prevent the availability of the drug.

                            STANDARD OF REVIEW

      Insufficiency of the evidence can be raised for the first time on appeal.

Insufficiency needs no predicate objection or motion for acquittal at trial. Hunt v.

State, 1985 Tex. App. LEXIS 6393 (Tex. App. Houston 1st Dist.–April 4, 1985).

      In a sufficiency review, an appellate court examines the evidence in the

light most favorable to the verdict to determine whether any rational fact-finder

could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979). The fact-finder is the exclusive

judge of the facts, the credibility of witnesses, and of the weight to be given

testimony. Padilla v. State, 326 S.W. 3d 196, 200 (Tex. Crim. App. 2010)

(quoting Jackson, 443 U.S. at 319). Moreover, an appellate court measures the

legal sufficiency of the evidence by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S. W. 2d 234, 240 (Tex.

Crim. App. 1997). In the appellate court’s review, it must evaluate all of the

evidence on the record, both direct and circumstantial, whether admissible or

                                          6
inadmissible. Dewberry v. State, 4 S. W. 3d 735, 740 (Tex. Crim.App. 1999), cert

denied, 529 U.S. 1131, 120 S.Ct. 200, 146 L.Ed. 2d 958 (2000).

                                   ARGUMENT

      A person commits the offense of tampering with evidence if, knowing that

an investigation or official proceeding is pending or in progress, he alters,

destroys, or conceals any record, document or thing with intent to impair its verity,

legibility, or availability as evidence in any subsequent investigation of or official

proceeding related to the offense. See Tex. Penal Code Ann. §37.09(a)(1).

      “Conceal” is not defined by the statute nor anywhere in the Penal Code, but

courts have held it means to hide, to remove from sight, or notice; to keep from

discovery or observation. See Rotenberry v. State, 245 S. W. 3d 583, 588-89

(Tex.App.-Fort Worth 2007, pet. ref’d). The Court of Appeals has held that

“conceal” means “to prevent disclosure or recognition of” or “to place out of

sight.” See Lujan v. State, No. 07–09-0036-CR, 2009 Tex. App. LEXIS 7121, at

*6(Tex.App.-Amarillo Sept. 9, 2009, no pet.). In the context of this offense, actio

malum prohibitum of concealment is the affirmative act of doing something with

the intent of making an item of evidence unavailable in a subsequent proceeding.

      In Blanton v. State, Nos. 05-05-01060-CR, 2006 Tex. App. LEXIS 6367,

(Tex.App.-Dallas July 21, 2006, pet. ref’d) the Court found the State failed to

                                           7
prove beyond a reasonable doubt that the defendant “concealed” because it was

found that defendant had in fact exposed the evidence to the officer’s view.

Moreover, the Court of Criminal Appeals has found that the State failed to prove

tampering through concealment when it presented evidence that the contraband,

i.e. a crack pipe, never left the officer’s sight, and was in plain view. The State had

failed to prove “conceal” in light of the fact that defendant did not do anything

affirmatively to throw it, bury it, cover it, hide it, place it out of sight, or otherwise

conceal it. Thornton v. State, 377 S.W. 3d 814 ( Tex.App.–Amarillo 2012).

      Rodriguez contends that based on the plain and ordinary meaning of

“conceal” and on the evidence and reasonable inferences to be drawn therefrom,

no reasonable and rational trier of fact could have found that he “concealed” the

drugs found in his hand, because the drugs never left his hand, and it was at all

times visible and in plain view to the police. Moreover, he made no overt act to

otherwise dispose of it by concealment. Rodriguez asserts the evidence was

insufficient to show beyond a reasonable doubt that he “concealed” the evidence

because the officers testified that they were aware of it at all times during the

detention and subsequent arrest and therefore his judgement should be reversed.

      Rodriguez contends that the evidence is insufficient to support or prove that

he attempted to conceal evidence while he knew an investigation was in progress.

                                            8
He asserts that he didn’t have the culpable mental state of knowledge as required

by §37.09(a)(1) and §6.03. The Indictment contends that he, knowing that an

official investigation was in progress, did conceal with intent to impair its

availability in the investigation. On September 3, 2012, Rodriguez knew that the

trespass charges against him were dismissed or “no charged” by the county

attorney. (3 RR p. 48). Therefore, Rodriguez did not know or reasonably believe

that an investigation was in progress and the State failed to prove otherwise, or

even attempt to prove otherwise, beyond a reasonable doubt, that there existed an

attempt by the police to investigate. Rodriguez stopped immediately when

Putnam so instructed him. He didn’t attempt to run, or make any overt act, which

would have implied guilt. ( 3 RR pp. 35-38). Neither Officer Putnam nor

Martinez advised him of why he was being detained. Rodriguez had to have been

aware of circumstances of an investigation while attempting to conceal the

evidence. The State did not prove this beyond a reasonable doubt. Terry v. Ohio,

392 U. S. 1, 16, 20 L.Ed. 2d 889, 88 S. Ct. 1868 (1968)(police driving down street

without lights or siren was not a show of authority such that a reasonable person

would not feel free to leave); See Robertson v. State, 1994 Tex. App. LEXIS 3573,

1994 WL 594022 (Tex. App. Dallas Oct. 28, 1994)(defendant had to have

knowledge of an investigation prior to the statutory conduct being alleged, i.e.

                                          9
concealment, to prove tampering of evidence.) Tex. Penal Code art. 6.03 defines

knowingly, or with knowledge, with respect to the nature of his conduct or to

circumstances surrounding his conduct when he is aware of the nature of his

conduct or that the circumstances exist. A person acts knowingly with respect to a

result of his conduct when he is aware that his conduct is reasonably certain to

cause the result. Again, Rodriguez did not have knowledge that there were

circumstances to cause his detention and subsequent arrest because he believed

that there were no trespass warrants for him since his prior case of trespass had

been “no charged.”

      Rodriguez asserts that the evidence was insufficient to show that he knew

an investigation was in progress prior to any alleged act of concealment and

therefore the judgment of the jury should be reversed.

      Rodriguez also contends that he did not have the culpable mental state of

intent to impair the verity, or availability of the evidence as required by the statute,

Tex. Penal Code art. 6.03(a). The statute defines “intentionally” with respect to

the nature of his conduct or to a result of his conduct when it is his conscious

objective or desire to engage in the conduct or cause the result. The evidence

reflects that nothing that Rodriguez did with the baggie in his hand would have

destroyed or impaired the cocaine’s availability as evidence. The grinding of the

                                          10
baggie would not have destroyed or made the cocaine disappear. There was no

concealment of the evidence which could have lessened the sample amount of

cocaine for evidence. The State failed to prove beyond a reasonable doubt that the

cocaine evidence was in fact destroyed by its grinding, nor did it present evidence

that its impairment could be inferred. It failed to prove that it was Rodriguez’s

intent to impair the availability of the baggie and its contents. See Rabb v. State,

434, S.W. 3d 613( Tex. Crim. App. 2014); Stewart v. State, 240 S.W. 3d 872(Tex.

Crim. App. 2007)(it is not enough that his action would impair, he must have

intended to impair its availability, it must have been defendant’s conscious

objective or desire, and the State must present evidence to show it was, in fact

destroyed, or that destruction could be inferred).

      Rodriguez contends that the State failed to prove beyond a reasonable doubt

that he had the intent to impair the verity, or availability of the cocaine as evidence

in the investigation.



                                      PRAYER

      For the foregoing, Appellant requests that this Court reverse the judgment

by the jury, and enter an order of acquittal.

                                                Respectfully submitted,

                                          11
                                              /s/ Irma Sanjines
                                              _____________________________
                                              IRMA MENDOZA SANJINES
                                              S.B.N. 17635655
                                              P. O. BOX 4005
                                              CORPUS CHRISTI, TX 78469
                                              TEL: (361) 883-6106
                                              FAX: (361) 883-9650

                            CERTIFICATE OF COMPLIANCE

             1.    This brief complies with the requirements of volume because

it contains 2, 357 words.

             2.    This brief complies with the typeface requirements because it

has been prepared using WordPerfect X7 in Times New Roman 14 point font for

text and 12 point font for footnotes, in standard 10 cpi typeface.



                                                    _/s/Irma Sanjines_________

                            CERTIFICATE OF SERVICE

             I certify that a copy of the foregoing Appellant’s Brief was served

upon the San Patricio County District Attorney’s Office by electronic transmission

on September 28, 2015.

                                              /s/Irma Sanjines




                                         12
