
                                          NO.  07-09-0229-CV

      IN THE COURT OF APPEALS

      FOR THE SEVENTH DISTRICT OF TEXAS

      AT AMARILLO

      PANEL C

      NOVEMBER 30, 2010

      ______________________________


                                            CLIFTON YOUNG,

                                                   Appellant
      v.

      THE STATE OF TEXAS,

                                                   Appellee
      _______________________________

      FROM THE 137th DISTRICT COURT OF LUBBOCK COUNTY;

      NO. 2008-421,326; HON. CECIL G. PURYEAR, PRESIDING
      _______________________________

                                          Memorandum Opinion
                                   _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
      Clifton Young was convicted of tampering with evidence.  In  challenging  that  conviction,  he
contends the evidence is insufficient to sustain it and that the trial  court  erred  in  failing  to
grant his motion for mistrial during the punishment phase.  We affirm the judgment.

      Background
      On September 21, 2008, Officer Brian Johnston was watching a house in Lubbock  known  for  drug
activity.  He observed appellant drive up to the residence, go inside for a  few  minutes,  and  then
leave.  In driving away, appellant failed to signal his intent  to  enter  the  lane  of  travel  and
failed to stop at a stop sign.  Johnston executed a traffic  stop  and  noticed  that  appellant  was
nervous and lacked a valid driver’s license.
      While speaking to appellant, Johnston also noticed  a  rocklike  substance  in  the  corner  of
appellant’s mouth.  The officer’s past experience with rock cocaine caused him to  believe  that  the
substance was cocaine.  He had appellant get out of the  vehicle  and  asked  him  to  spit  out  the
substance.  Johnston then observed that appellant appeared to have swallowed a portion  of  the  rock
because there were crumbs on his mouth and the rock looked smaller.  He explained  to  appellant  the
difference between tampering with evidence and possession of drugs.  Johnston tried to place his  asp
in appellant’s mouth to keep him from swallowing the rest but was  unsuccessful.     Johnston  warned
appellant that he could possibly lose his life by swallowing the drugs.  Appellant  finally  admitted
that he had swallowed “a dub” meaning a $20 piece of crack.  The  officer  transported  appellant  to
the emergency room.
      When appellant provided a history to the emergency room nurse, he informed  her  he  was  being
chased by the cops and swallowed cocaine  to  hide  the  evidence.   Appellant  was  given  activated
charcoal to absorb the cocaine or help  him  to  vomit  the  contents  of  his  stomach.   At  trial,
appellant denied he had anything in his mouth and claimed he went along with everything  the  officer
said hoping he would be let go when it was discovered that there was no cocaine.
      Sufficiency of the Evidence
      We review the sufficiency of the evidence under the standard discussed in Jackson v.  Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).  See Brooks v. State, No. PD-0210-09,  2010  Tex.
Crim. App. Lexis 1240 at *25-26 (Tex. Crim. App. October 6, 2010).  Appellant contends  the  evidence
is insufficient because it shows that he destroyed the evidence  as  opposed  to  concealing  it  and
because the only investigation in progress was a traffic investigation.
      Appellant was charged with intentionally or knowingly concealing  a  piece  of  evidence  while
knowing that a police investigation was in progress and with the intent to  impair  the  availability
of the evidence in the investigation.  See Tex. Penal Code  Ann.  §37.09(a)(1)  (Vernon  Supp.  2010)
(defining tampering with evidence to occur when a person, knowing that an investigation  or  official
proceeding is pending or in progress, alters, destroys, or conceals any record,  document,  or  thing
with intent to impair its verity, legibility, or availability as evidence  in  the  investigation  or
official proceeding).  To conceal means to prevent disclosure or recognition of or to  place  out  of
sight.  Lujan v. State, No. 07-09-0036-CR, 2009 Tex. App.  Lexis  7121,  at  *5  (Tex.  App.–Amarillo
September 9, 2009, no pet.) (not designated for publication).  It also means to  hide  or  keep  from
observation, discovery,  or  understanding.   Hollingsworth  v.  State,  15  S.W.3d  586,  595  (Tex.
App.–Austin 2000, no pet.).  By swallowing cocaine that might be observable to the officer  during  a
conversation, a rational trier of fact could find beyond a reasonable doubt that appellant sought  to
prevent its disclosure or to place it out of sight.  See Lewis v. State, 56  S.W.3d  617,  625  (Tex.
App.–Texarkana 2001, no pet.) (finding the  evidence  sufficient  to  show  the  defendant  concealed
evidence when he put it in his mouth and swallowed it).  There  was  no  showing  that  the  rock  of
cocaine would necessarily be destroyed by swallowing it.[1]  Moreover, evidence was before  the  jury
that appellant admitted to the officer that he had swallowed cocaine,  and  appellant  told  hospital
personnel that he swallowed cocaine in an attempt “to hide evidence.”
      Appellant relies upon Hollingsworth v. State, in which the officers were investigating a  knife
fight when they observed the defendant, who fit one of the descriptions, ordered  him  to  stop,  and
watched him duck behind a dumpster and spit out  two  white  objects.   Hollingsworth  v.  State,  15
S.W.3d at 589-90.  There was testimony that persons often carry cocaine  in  their  mouths,  and  the
court found that there was no evidence that he concealed the cocaine in his mouth in  an  attempt  to
impair its availability as evidence.  Id. at 595.   Likewise, appellant argues that because  Johnston
did not see him place the cocaine in his mouth, he could simply have been carrying it there.
      However, once Johnston saw a white object  in  appellant’s  mouth,  he  explained  to  him  the
difference between possession of drugs and tampering with evidence and  told  appellant  to  spit  it
out.  In response, appellant swallowed it.   These facts are different from  those  in  Hollingsworth
and justify a finding that appellant attempted to conceal the evidence.
      Appellant also argues that the only investigation in progress at the time  appellant  swallowed
the drug was a traffic investigation and not a narcotics investigation. See  Lumpkin  v.  State,  129
S.W.3d 659, 663 (Tex. App.–Houston [1st Dist.] 2004,  pet.  ref’d)  (holding  the  evidence  was  not
sufficient to show  the  officer’s  investigation  concerned  narcotics  when  the  officer  saw  the
defendant ingesting a white substance as he approached the defendant’s  car  as  part  of  a  traffic
stop); Pannell v. State, 7 S.W.3d 222, 223 (Tex. App.–Dallas 1999,  pet.  ref’d)  (holding  that  the
defendant was not being investigated for possession of marijuana when the officer  saw  him  throw  a
marijuana cigarette and empty a baggie from a car window as  he  was  being  stopped  for  speeding).
However, the title of the investigation and the evidence concealed need not  match  as  long  as  the
accused intends to impair the availability of the  evidence  in  an  investigation  he  knows  is  in
progress.  Williams v. State, 270 S.W.3d 140, 145 (Tex. Crim. App. 2008).  Furthermore, the jury  may
infer an accused’s knowledge about the existence of  an  ongoing  investigation  from  circumstantial
evidence such as acts, words, and conduct.  Lujan v. State, 2009 Tex. App. Lexis 7121, at *5.
      Prior to completely swallowing the drug, appellant was stopped after leaving a house known  for
drug activity which appellant admitted at trial.  Appellant knew the officer saw  an  object  in  his
mouth. The officer explained the difference  to  appellant  between  possession  of  a  narcotic  and
tampering with evidence.  The officer told  appellant  to  spit  out  the  object.  And  the  officer
attempted with his asp to  prevent  appellant  from  swallowing  the  object.  From  this,  it  could
rationally be inferred that appellant knew that a police investigation was in progress and that  such
investigation was related to narcotics.   See  Lewis  v.  State,  56  S.W.3d  at  625  (evidence  was
sufficient to show the accused knew an investigation was pending  because  he  refused  to  spit  the
object out or otherwise allow its removal after being ordered to do  so).   We  overrule  appellant’s
first two issues.
      Jury Argument
      In his third issue, appellant complains of the trial court’s failure to grant  his  motion  for
mistrial due to improper closing argument by the State.  That argument consisted  of  the  prosecutor
referring to appellant as “a known drug user, a known drug paddler [sic].”  When appellant  objected,
the State offered to rephrase without a ruling from the court.  Appellant  then  requested  that  the
trial court instruct the jury to disregard the statement which the trial  court  did.   Subsequently,
appellant moved for a mistrial on the basis the statement was  “intending  to  suggest  that  he  was
delivering drugs.”  That motion was denied.
        We review the trial court’s denial of a motion for mistrial for abuse  of  discretion.   Ocon
v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009).  A mistrial  is  required  only  when  improper
argument is clearly calculated to inflame the minds of the jury and is of  such  a  character  as  to
suggest the impossibility of withdrawing the impression produced in the minds of the jury.   Hinojosa
v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999);  Brock  v.  State,  275  S.W.3d  586,  591  (Tex.
App.–Amarillo 2008, pet. ref’d).  In making our analysis, we  presume  that  the  jury  followed  the
instruction to disregard.  Weinn v. State, 281 S.W.3d 633,  642  (Tex.  App.–Amarillo  2009),  aff’d,
2010 Tex. Crim. App. Lexis 793 (Tex. Crim. App. June 30, 2010); Drake v. State, 123 S.W.3d  596,  604
(Tex. App.–Houston [14th Dist.] 2003, pet. ref’d).
            Appellant complains that new facts were injected into the record when the State  referred
to him as a drug peddler.  He further relies upon Simpson v. State, 493 S.W.2d 793 (Tex.  Crim.  App.
1973), in which the State implied through questions asked of a witness during  the  punishment  phase
that the defendant had sold drugs on three occasions, although there was no evidence to support  that
conclusion. Here, the prosecutor offered to rephrase as soon as the objection  was  made  and,  after
the court instructed the jury to disregard, the prosecutor explained that he “meant  someone  dealing
with the drugs, panhandling, voluntarily consuming them.”   This indicates that  the  remark  was  an
inadvertent mistake, and no further mention was made of appellant being  a  drug  dealer.   Moreover,
appellant was sentenced to a punishment of six years out of a possible range of two to  ten  years[2]
with evidence in the record of several previous convictions.   Under  these  circumstances,  we  find
that the instruction to disregard, which we presume was followed, was sufficient to cure the error.
      Having overruled appellant’s issues, we affirm the judgment.

                                  Per Curiam

Do not publish.

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      [1]A nurse testified that it would pass through the system either by being vomited or through a
bowel movement.
      [2]Appellant was also assessed a fine of $5,000 out of a possible $10,000.

