                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-14-00355-CR


                      JOHNTA MARTEE MCNEAL, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 84th District Court
                                 Hutchinson County, Texas
               Trial Court No. 10700, Honorable William D. Smith, Presiding

                                     July 17, 2015

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      A jury convicted appellant Johnta Martee McNeal of possession of four grams or

more but less than 200 grams of methamphetamine with intent to deliver 1 and




      1
         TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(d) (West 2010). An
offense under section 481.112(d) is punishable by imprisonment for life or for a term of
not more than 99 years or less than 10 years, and a fine not to exceed $100,000. TEX.
HEALTH & SAFETY CODE ANN. § 481.112(e) (West 2010). On a showing of a prior felony
conviction, the minimum term of confinement is increased to fifteen years. TEX. PENAL
CODE ANN. § 12.42(c)(1) (West Supp. 2014).
tampering with physical evidence.2 Concurrent prison terms of twenty years, enhanced,

and five years were assessed. Finding the evidence was insufficient to prove appellant

committed the offense of tampering with physical evidence or its attempt, we will modify

the judgment to render an acquittal on that charge. As modified, we will affirm the

judgment of the trial court.


                                       Background


       A Borger motorcycle police officer stopped a car owned by appellant and driven

by his younger brother for traffic violations. Appellant was the only passenger. The

officer approached the driver’s side and there spoke with appellant’s brother.


       Appellant and his brother each produced identification cards but could not open

the glove compartment which they believed contained proof of insurance. Meanwhile,

the officer saw a marijuana pipe in the vehicle’s ashtray. The officer also noticed on the

center console a scale of a type he believed was typically used to weigh drugs for sale.

When asked if the vehicle contained “anything illegal” appellant’s brother responded

that he smoked “weed” and used the scale “to weigh [his] marijuana.”


       At the officer’s direction, appellant’s brother stepped out of the vehicle and the

officer conducted a pat-down search. After obtaining consent, the officer also searched

the brother’s pockets, finding some $700 in cash.        Of the cash, $500 was bound

together with a “female’s hair tie.”



       2
         TEX. PENAL CODE ANN. § 37.09(a) (West Supp. 2014). An offense under this
section is a felony of the third degree. Id. at § 37.09(c). It is punishable by confinement
in prison for two to ten years and a fine of not more than $10,000. TEX. PENAL CODE
ANN. § 12.34(a),(b) (West 2011).

                                            2
       The officer then directed appellant’s brother to sit down while he turned his

attention to appellant. By this time a backup officer in a patrol car arrived. At his

request appellant exited the vehicle.


       The officer began questioning appellant. As they spoke appellant looked away.

Suddenly he withdrew objects from his pocket. Saying they were “pipes,” he dropped

them. A glass pipe, which the officer testified was a methamphetamine pipe, broke.

The other item was part of a crack pipe. The officer testified by that point he intended to

arrest appellant for tampering with physical evidence and possession of paraphernalia.


       The officer added that appellant “started to kind of bolt a little bit.” The video

recording from the backup officer’s car shows appellant began a quick movement away

from the officers. The backup officer grabbed appellant, placed him on the ground, and

handcuffed him.


       Searching appellant’s person, the officer discovered a Kool cigarette box in his

underwear.    Inside the box was a “large” clear bag containing a “white crystal

substance” the officer believed was methamphetamine.          A photograph in evidence

shows the bag on the brother’s digital scale. It registers 23.1 grams. Department of

Public Safety testing later showed the substance contained methamphetamine and

weighed 22.44 grams.


       The officer testified he had completed several law-enforcement programs,

including narcotics training, and had participated in seventy to eighty drug arrests. The

majority of these arrests were for methamphetamine. In the officer’s opinion, a user of

methamphetamine might consume a gram or perhaps a gram-and-a-half per day.              He


                                            3
further observed that, based on a user’s consumption of one gram a day, the quantity of

methamphetamine appellant possessed would last twenty-three days. The officer also

testified that an ounce equates to roughly twenty-eight grams. At the time of appellant’s

arrest, methamphetamine in Borger sold for $100 per gram and was priced on a “point

for point” system. For example, he continued, a tenth of a gram sold for $10, two-tenths

for $20, and so on.


       After appellant’s arrest, during a search of his vehicle, officers found a notice

indicating appellant was behind on his car loan payments. Officers also located three

cell phones although at trial the officer could not recall whether the phones came from

the person of appellant, his brother or the vehicle. Two CDs were found bearing the

handwritten titles “crack” and “cocaine.”


       The jury was charged on the law of parties.       It returned verdicts convicting

appellant of possession with intent to deliver a controlled substance and tampering with

physical evidence. The court imposed the sentences noted and signed a single

judgment.


                                            Analysis


First Issue: Intent to Deliver


       Appellant contends that the evidence was insufficient to establish the “intent to

deliver” element of the possession offense.3



       3
         It was the State’s burden to prove appellant knowingly possessed with intent to
deliver a controlled substance listed in Penalty Group 1. TEX. HEALTH & SAFETY CODE
ANN. § 481.112(a) (West 2010). Here the controlled substance was methamphetamine.

                                               4
      In a sufficiency review, we examine the evidence to determine whether any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979));

Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the

evidence in the light most favorable to the verdict and assume the trier of fact resolved

conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a

manner that supports the verdict. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim.

App. 2007).


      ‘“Deliver’ means to transfer, actually or constructively, to another a controlled

substance . . . . The term includes offering to sell a controlled substance . . . .” TEX.

HEALTH & SAFETY CODE ANN. § 481.002(8) (West Supp. 2014). Intent to deliver may be

proved with circumstantial evidence, including evidence that the defendant possessed

the contraband. Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th

Dist.] 2006, pet. refused). “Intent can be inferred from the acts, words, and conduct of

the accused.” Id. at 326 (quoting Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim.

App. 1995)). The expert testimony of an experienced law enforcement officer may be

used to establish an accused’s intent to deliver. Id. The factors to be considered in

determining whether a defendant possessed contraband with an intent to deliver include

the nature of the location where the defendant was arrested, the quantity of drugs the

defendant possessed, the manner of packaging the drugs, the presence or absence of

drug paraphernalia, whether the defendant possessed a large amount of cash, and the
_____________________
Methamphetamine is listed in Penalty Group 1. TEX. HEALTH & SAFETY CODE ANN. §
481.102(6).

                                            5
defendant’s status as a drug user. Kibble v. State, 340 S.W.3d 14, 18-19 (Tex. App.—

Houston [1st Dist.] 2010, pet. refused); see also Williams v. State, 902 S.W.2d 505, 507

(Tex. App.—Houston [1st Dist.] 1994, pet. refused). This list of factors is not exclusive,

nor must they all be present to establish a defendant’s intent to deliver. Kibble, 340

S.W.3d at 19.


       We find the evidence permitted a rational jury to determine appellant had the

intent to deliver the methamphetamine he possessed. The jury could have determined

the officer was experienced in handling narcotics arrests, particularly those involving

methamphetamine. A marijuana pipe and a scale admittedly used for weighing drugs

were in plain view inside the vehicle. On his person, appellant possessed pipes for

smoking crack cocaine and methamphetamine, but there was no evidence of

intoxication. Appellant was delinquent in repaying his car loan. Three cell phones were

present. In appellant’s underwear were 22.44 grams of methamphetamine, about a 23-

day supply for a user. Appellant’s brother possessed about $700 cash, $500 of it bound

together. Five hundred dollars approximated the street-value difference between an

ounce of methamphetamine and the amount found in appellant’s underwear. The jury

was charged on the law of parties. In this way, during closing argument, the prosecutor

argued, “[s]o one has got the dope and one is holding the money. Aid and assist to aid.

Sounds like a simple business transaction with two parts of the same business. One is

delivering and one is collecting.” The jury was entitled to agree.


       Appellant’s first issue is overruled.




                                               6
Second Issue: Tampering with Physical Evidence


       Appellant next contends the evidence was insufficient to establish he concealed

the methamphetamine with knowledge an investigation was in progress. The indictment

alleged “[Appellant] did then and there knowing that an investigation was in progress, to

wit: the Defendant was being detained by law enforcement, did conceal a thing, to wit: a

baggie containing methamphetamine with intent to impair its availability as evidence in

said investigation[.]”   The application paragraph of the charge inquired whether

appellant tampered “with physical evidence knowing that an investigation was in

progress, to wit: [appellant], while being detained by law enforcement, did conceal a

thing, to wit: a baggie containing methamphetamine, with intent to impair its availability

as evidence in said investigation[.]”


       The offense of tampering with physical evidence contains three elements:

knowing that an investigation or official proceeding is pending or in progress, a person

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.

TEX. PENAL CODE ANN. § 37.09(a)(1) (West Supp. 2014); Rabb v. State, 434 S.W.3d

613, 616 (Tex. Crim. App. 2014) (citing Williams v. State, 270 S.W.3d 140, 142 (Tex.

Crim. App. 2008)).


       We read appellant’s brief to include the contention the evidence does not show

when he put the cigarette package into his underwear, and we agree with the

contention. The evidence shows merely the fact of the traffic stop, the officer’s initial

attention to appellant’s brother, and the eventual discovery of the cigarette box from the



                                             7
search of appellant after he was cuffed.         The State contends the jury could have

inferred he concealed the box in his underwear after the officer initiated the traffic stop.

We agree appellant had the opportunity to do so between the initiation of the traffic stop

and appellant’s removal from the car. But there is no evidence he did so during that

time, and we disagree the evidence permits a reasonable inference of it. See Hooper v.

State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007) (conclusion reached by speculation

may not be completely unreasonable but is not sufficiently based on facts or evidence to

support finding beyond reasonable doubt).             On cross-examination, the officer

acknowledged that as he approached the vehicle after the stop, he watched for “overt or

furtive movements” and saw none. When asked if he saw appellant shift in his seat in

the vehicle the officer responded he did not. He added “not in an abnormal amount of

(sic) fashion, no.” We also have carefully reviewed the video taken from the backup

officer’s patrol car and see no movements suggesting appellant concealed the box while

in the view of the camera.


       The State also argues appellant admitted during punishment-phase testimony his

guilt of concealing the methamphetamine in his underwear and argues he is now

effectively estopped to complain the evidence was insufficient to support his conviction

for tampering with evidence. We need not decide whether appellant admitted the

indicted offense during his punishment-phase testimony. “[A] defendant who testifies at

the punishment stage of trial and admits his guilt does not forfeit his right to complain on

appeal about errors occurring during the guilt stage.” Jacobson v. State, 398 S.W.3d

195, 196-97 (Tex. Crim. App. 2013) (overruling De Garmo v. State, 691 S.W.2d 657

(Tex. Crim. App. 1985)).


                                             8
       We now consider whether appellant could have been convicted of a lesser-

included offense. Rabb, 434 S.W.3d at 618; Thornton v. State, 425 S.W.3d 289, 299-

300 (Tex. Crim. App. 2014).


       For this determination, the Court of Criminal Appeals prescribes two questions:

“1) in the course of convicting the appellant of the greater offense, must the jury have

necessarily found every element necessary to convict the appellant for the lesser-

included offense; and 2) conducting an evidentiary sufficiency analysis as though the

appellant had been convicted of the lesser-included offense at trial, is there sufficient

evidence to support a conviction for that offense?” Rabb, 434 S.W.3d at 620 (quoting

Thornton, 425 S.W.3d at 299-300). If the answer to either question is no, we are not

authorized to reform the judgment. But if the answers to both are yes, we are required

to reform the judgment to reflect a conviction for the lesser-included offense. Id.


       Under the criminal attempt statute, a person “commits an offense if, with specific

intent to commit an offense, he does an act amounting to more than mere preparation

that tends but fails to effect the commission of the offense intended.” TEX. PENAL CODE

ANN. § 15.01(a) (West 2011). A person commits the offense of attempted tampering

with or fabricating physical evidence if, with specific intent to commit the offense of

tampering with or fabricating physical evidence, he does an act amounting to more than

mere preparation that tends but fails to effect the commission of the offense. Beck v.

State, No. 10-08-00365-CR, 2010 Tex. App. LEXIS 7265, at *8-9 (Tex. App.—Waco

Sept. 1, 2010, pet. refused) (mem. op. on reh’g, not designated for publication).




                                             9
      For the same reason appellant could not have been convicted of the greater

offense, he could not have been convicted of the lesser-included offense of attempt.

The record is devoid of evidence that while an investigation was in progress appellant,

acting with specific intent to commit tampering with evidence, performed any

preparatory act tending, but failing, to effect commission of tampering with physical

evidence. The response to question number two of the Thornton inquiry is no. Rabb,

434 S.W.3d at 620. Appellant’s second issue is sustained.


                                      Conclusion


      We reverse appellant’s conviction for tampering with physical evidence, and

render a judgment of acquittal of that offense. We modify the trial court’s judgment to

reflect appellant’s acquittal of the charge of tampering with physical evidence.    As

modified, the judgment is affirmed.




                                               James T. Campbell
                                                   Justice


Do not publish.




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