                                 NO. 12-07-00279-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

NOEL S. HARRIS,                                  §    APPEAL FROM THE 241ST
APPELLANT

V.                                               §    JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                         §    SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Noel S. Harris appeals his conviction for tampering with evidence, for which he was
sentenced to imprisonment for sixteen years. In three issues, Appellant challenges the sufficiency
of the evidence and argues that his sentence constituted cruel and unusual punishment. We affirm.

                                          BACKGROUND
       Appellant was charged by indictment with tampering with evidence. The indictment further
contained an enhancement allegation that Appellant had been previously convicted of the felony
offense of driving while intoxicated. Appellant pleaded “not guilty,” and the matter proceeded to
a jury trial. At the outset of trial, a hearing was held on Appellant’s motion to suppress. The trial
court denied Appellant’s motion, and the parties proceeded with the presentation of evidence.
       Officer Thomas Guerrero of the Tyler Police Department testified as the State’s first witness.
Guerrero testified that on January 17, 2007, he was a trainee in the first phase of the department’s
field training program under the supervision of Officer Damon Swan. Guerrero further testified that
at 7:00 p.m. on the day in question, he and Swan were on patrol when they observed Appellant
riding a bicycle on the wrong side of the road and without proper illumination. Guerrero stated that
he stopped Appellant for the violations. Guerrero further stated that when he asked Appellant
questions concerning his identity, Appellant mumbled his answers and appeared to attempt to avoid
opening his mouth. Guerrero testified that Appellant’s behavior concerned him because he
suspected Appellant was trying to consume something illegal or had something in his mouth that he
was not supposed to have. Guerrero further testified that, as a result of Appellant’s behavior and
because they were in a known “high-drug” area, he began to investigate whether Appellant was in
possession of any type of controlled substance. Guerrero stated that he asked Appellant what was
in his mouth and that Appellant responded that it was a “marijuana roach.” Guerrero explained to
the jury that a marijuana roach is whatever is left of a marijuana joint or any kind of a marijuana
blunt after it has been smoked. Guerrero further stated that he looked into Appellant’s mouth
multiple times and observed a green leafy substance, which based on his training and experience he
believed to be marijuana. Guerrero testified that they were not able to recover the marijuana as
evidence because Appellant intentionally or knowingly destroyed it by chewing it and swallowing
it, thereby impairing its availability as evidence in the investigation of his possession of marijuana.
       Officer Damon Swan testified as the State’s next witness. Swan’s testimony was largely
consistent with Guerrero’s testimony. Swan testified that when Guerrero initiated contact with
Appellant, Swan observed from the vehicle that Appellant was chewing on something. Swan further
testified that he approached Appellant and asked him to spit out whatever was in his mouth. Swan
stated that as Appellant spat, he observed small green flakes in the spittle that he suspected were
marijuana. Swan further stated that the green flakes he observed were not retrievable for evidence.
Swan testified that Appellant admitted to them that he had been chewing a “roach,” which Swan
explained he understood to be the remnants of a partially smoked marijuana cigarette. Swan further
testified that it appeared to him that Appellant ate the marijuana in question to conceal it.
       Following Swan’s testimony, the State rested. Appellant moved for a directed verdict, which
the trial court denied. Thereafter, Appellant rested. Ultimately, the jury found Appellant to be
“guilty” as charged. The matter proceeded to a jury trial on punishment. At the outset of
Appellant’s trial on punishment, Appellant pleaded “true” to the enhancement allegation in the
indictment. Following the presentation of evidence, the jury assessed Appellant’s punishment at
imprisonment for sixteen years. The trial court sentenced Appellant accordingly, and this appeal
followed.




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                                    EVIDENTIARY SUFFICIENCY
       In his first and second issues, Appellant argues that the evidence is both legally and factually
insufficient to support that he knew at the time he ate the substance that an investigation and official
proceeding were impending or in progress.
Legal Sufficiency
       Legal sufficiency is the constitutional minimum required by the Due Process Clause of the
Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307,
315–16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1,
6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge
is whether any rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871
S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to
the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A
successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court.
See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
       The sufficiency of the evidence is measured against the offense as defined by a hypothetically
correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a
charge would include one that “accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of
liability, and adequately describes the particular offense for which the defendant is tried.” Id.
       In the case at hand, to support Appellant’s conviction for tampering with evidence, the State
was required to prove either that (1) Appellant, knowing that an investigation was pending or in
progress, altered, destroyed, or concealed any thing with intent to impair its verity, legibility, or
availability as evidence in the investigation or (2) Appellant, knowing that an offense had been
committed, altered, destroyed, or concealed any 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), (d)(1) (Vernon Supp. 2007). Though Appellant
was charged pursuant to Subsections 37.09(a)(1) and 37.09(d)(1), he has made no argument with
regard to the commission of the offense of tampering with evidence as set forth in Section


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37.09(d)(1). If we determine there is legally sufficient evidence to support Appellant’s conviction
pursuant to Section 37.09(d)(1), we need not address the sufficiency of the evidence to support his
conviction pursuant to Section 37.09(a)(1).
       According to Guerrero’s testimony, he stopped Appellant for a violation of the traffic code.
Guerrero stated that when he asked Appellant questions concerning his identity, Appellant mumbled
his answers and appeared to attempt to avoid opening his mouth. Guerrero testified that Appellant’s
behavior concerned him because he suspected Appellant was trying to consume something illegal
or had something in his mouth that he was not supposed to have. Guerrero further testified that, as
a result of Appellant’s behavior and because they were in a known “high-drug” area, he began to
investigate whether Appellant was in possession of any type of controlled substance. Guerrero stated
that he asked Appellant what was in his mouth and that Appellant responded that it was a “marijuana
roach.” Guerrero explained to the jury that a marijuana roach is whatever is left of a marijuana joint
or any kind of a marijuana blunt after it has been smoked. Guerrero further stated that he looked into
Appellant’s mouth multiple times and observed a green leafy substance, which based on his training
and experience he believed to be marijuana. Guerrero testified that they were not able to recover the
marijuana as evidence because Appellant intentionally or knowingly destroyed it by chewing it and
swallowing it, thereby impairing its availability as evidence in the investigation of his possession of
marijuana. Additionally, Swan testified that when Guerrero initiated contact with Appellant, Swan
observed from the vehicle that Appellant was chewing on something. Swan further testified that he
approached Appellant and asked him to spit out whatever was in his mouth. Swan stated that as
Appellant spat, he observed small green flakes in the spittle that he suspected were marijuana. Swan
further stated that the green flakes he observed were not retrievable for evidence. Swan testified that
Appellant admitted to them that he had been chewing a “roach,” which Swan explained he
understood to be the remnants of a partially smoked marijuana cigarette. Swan further testified that
it appeared to him that Appellant ate the marijuana in question to conceal it.
       Examining the aforementioned evidence in the light most favorable to the verdict, we
conclude that the jury could have determined beyond a reasonable doubt that Appellant knew that




                                                  4
he had committed the offense of possessing marijuana1 and, with the intention of impairing the
marijuana’s availability as evidence in any subsequent investigation related to the offense, destroyed
or concealed the marijuana. Therefore, we hold that the evidence was legally sufficient to support
the jury’s verdict. Appellant’s first issue is overruled.
Factual Sufficiency
       Turning to Appellant’s contention that the evidence is not factually sufficient to support the
jury’s verdict, we must first assume that the evidence is legally sufficient under the Jackson
standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all
of the evidence weighed by the trial court that tends to prove the existence of the elemental fact in
dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939
S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the trial
court’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922
S.W.2d at 133, our evaluation should not substantially intrude upon the trial court’s role as the sole
judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where
there is conflicting evidence, the trial court’s verdict on such matters is generally regarded as
conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d).
Ultimately, we must ask whether a neutral review of all the evidence, both for and against the
finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence
in the trial court’s determination, or the proof of guilt, although adequate if taken alone, is greatly
outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also
Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (evidence is factually insufficient
only when reviewing court objectively concludes that the great weight and preponderance of the
evidence contradicts the verdict).
       In the instant case, Appellant argues generally that the evidence tending to show that no
investigation was “impending or in progress” when Appellant swallowed the marijuana was far
greater than any evidence supporting that such an investigation was underway. Appellant makes no
argument with regard to evidence supporting his conviction pursuant to Texas Penal Code, section



       1
           See T EX . H EALTH & S AFETY C O D E A N N . § 481.121(a) (Vernon 2003).

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37.09(d)(1). As in our consideration of Appellant’s legal sufficiency challenge, we need not address
Appellant’s argument with regard to Subsection 37.09(a)(1) if we conclude that the evidence is
factually sufficient to support his conviction pursuant to Subsection 37.09(d)(1).
       We have reviewed the record in its entirety. We iterate that our evaluation should not
substantially intrude upon the trial court’s role as the sole judge of the weight and credibility of
witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the
trial court’s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d
at 96. Our review of the record as a whole, with consideration given to all of the evidence, both for
and against the jury’s verdict, has not revealed to us any evidence that causes us to conclude that the
proof of Appellant’s guilt as charged under subsection 37.09(d)(1) is so obviously weak or is
otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong
or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury’s
verdict. Appellant’s second issue is overruled.

                                CRUEL AND UNUSUAL PUNISHMENT
       In his third issue, Appellant contends that the sixteen year sentence imposed on him for
tampering with evidence constitutes cruel and unusual punishment under both the Texas and United
States constitutions. However, Appellant made no timely objection to the trial court raising the issue
of cruel and unusual punishment and has, therefore, waived such an issue on appeal. See Rhoades
v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver with regard to rights under the Texas
Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to
rights under the United States Constitution); see also TEX R. APP . P. 33.1.
       However, even absent waiver, we conclude that Appellant's sentence did not constitute cruel
and unusual punishment. Appellant was convicted of tampering with evidence. See TEX . PENAL
CODE ANN . § 37.01(a), (d)(1). The punishment range for such an offense, considering the
enhancement allegation, is between five and ninety-nine years, or life. See TEX . PENAL CODE ANN .
§§ 12.33(a), 12.42, 37.09(c) (Vernon 2003 & Supp. 2007). Here, the sentence imposed by the trial
court falls within the range set forth by the legislature. Id. Therefore, the punishment is not
prohibited as cruel, unusual, or excessive per se. See Harris v. State, 656 S.W.2d 481, 486 (Tex.


                                                   6
Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis v. State,
905 S.W.2d 655, 664 (Tex. App.–Texarkana 1995, pet. ref’d).
         Nonetheless, we have considered the threshold question of whether Appellant’s sentence is
grossly disproportionate to the crime. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.),
cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v. State, 989
S.W.2d 842, 845–46 (Tex. App.–Texarkana 1999, no pet.); see also Harmelin v. Michigan, 501
U.S. 957, 1005, 111 S. Ct. 2680, 2707, 115 L. Ed. 2d 836 (1991); Solem v. Helm, 463 U.S. 277,
298–300, 103 S. Ct. 3001, 3013–15, 77 L. Ed. 2d 637 (1983). In reaching this conclusion, we are
guided by the holding in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980),
in which the Supreme Court upheld the appellant’s mandatory life sentence under a prior version of
the Texas habitual offender statute for a conviction of obtaining $120.75 by false pretenses. Id., 445
U.S. at 266, 100 S. Ct. at 1135. Since here the offense committed by Appellant—tampering with
evidence—is no less serious than any of the offenses committed by the appellant in Rummel, while
Appellant’s sixteen year sentence is far less severe than the life sentence upheld by the Supreme
Court in Rummel, it follows that if the sentence in Rummel was not unconstitutionally
disproportionate, then neither is the sentence assessed against Appellant in the case at hand.
Therefore, since we do not find the threshold test to be satisfied, we need not apply the remaining
elements of the Solem test.2 Appellant’s third issue is overruled.

                                                    DISPOSITION
         Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s
judgment.
                                                                              JAMES T. WORTHEN
                                                                                  Chief Justice
Opinion delivered July 23, 2008.
Panel consisted of Worthen, C.J. and Griffith, J.

                                               (DO NOT PUBLISH)


         2
           Under this test, the proportionality of a sentence is evaluated by considering (1) the gravity of the offense
and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the
sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292, 103 S. Ct. at
3011.

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