                                                                                           ACCEPTED
                                                                                      13-15-00287-CR
                                                                      THIRTEENTH COURT OF APPEALS
                                                                             CORPUS CHRISTI, TEXAS
                                                                                11/25/2015 1:03:58 PM
                                                                                     Dorian E. Ramirez
                                                                                                CLERK

                           No. 13-15-00287-CR

                                IN THE                FILED IN
                                              13th COURT OF APPEALS
                                           CORPUS CHRISTI/EDINBURG, TEXAS
                  THIRTEENTH COURT OF APPEALS
                                              11/25/2015 1:03:58 PM
                                                DORIAN E. RAMIREZ
                         at Corpus Christi             Clerk
                            _______________

                      JUAN TORRES RODRIGUEZ

                               Appellant,

                                   v.

                        THE STATE OF TEXAS,

                                Appellee.
                            _______________

                 Appealed from Cause Number S-14-3162-CR
                    In the 36th Judicial District Court of
                         San Patricio County, Texas
________________________________________________________________________

                           APPELLEE’S BRIEF
________________________________________________________________________

                                        Michael E. Welborn
                                        District Attorney

                                        Samuel B. Smith, Jr.
                                        Assistant District Attorney
                                        Texas Bar No. 18682570
                                        P.O. Box 1393
                                        Sinton, Texas 78387
                                        Tel. (361) 364-9390
                                        Fax (361) 364-9490

                                        ATTORNEY FOR APPELLEE,
                                        THE STATE OF TEXAS
ORAL ARGUMENT NOT REQUESTED
                            IDENTITIES OF THE PARTIES

APPELLANT                                      Juan Torres Rodriguez

Trial Judge                                    Honorable Joel B. Johnson
                                               36th District Court
                                               400 W. Sinton Street
                                               Sinton, Texas 78387

Trial Attorney and Appeal                      Samuel B. Smith, Jr.
Attorney For State                             State Bar No. 18682570
                                               Assistant District Attorney
                                               P.O. Box 1393
                                               Sinton, Texas 78387

Trial Attorney/Appellant                       David Phillips
                                               State Bar No. 15922525
                                               P.O. Box 124
                                               Corpus Christi, Texas 78403

Appellant Attorney                             Irma Mendoza Sanjines
                                               State Bar No. 17635655
                                               P.O. Box 4005
                                               Corpus Christi, Texas 78469




                                        ii
                         TABLE OF CONTENTS

                                             PAGE

IDENTITY OF PARTIES AND COUNSEL               ii

INDEX OF AUTHORTIES                           iv

STATEMENT OF THE CASE                         1

STATE’S REPLY TO APPELLANT’S ISSUE            1,2

STATEMENT OF FACTS                            2,3

SUMMARY OF THE ARGUMENT AND                   4
REPLY TO APPELLANT’S FIRST ISSUE

ARGUMENT AND AUTHORITIES ISSUE NUMBER ONE      4,5

CONCLUSION/PRAYER                              5

CERTIFICATE OF SERVICE                         6

CERTIFICATE OF COMPLIANCE                      6




                                iii
                           INDEX OF AUTHORITIES

Cases:                                                Page

Brooks v State, 323 S.W.3d 383 (Tex.Crim App. 2010)   4



Brooks v State, 323 S.W.3d 383 (Tex.Crim App. 2010)   5




                                        iv
                             STATEMENT OF CASE

        Juan Torres Rodriguez (hereafter Appellant), 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). Clerks Record (hereafter CR) p. 6

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

Reports Record, (Hereafter RR) p.3 The jury found Rodriguez guilty on both counts.

(CR pp.44-45) A Pre Sentence Investigation report was ordered and a punishment

hearing was scheduled for February 20, 2015. (CR, p.46)

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

trial court conducted a punishment hearing and sentenced Appellant to eighteen months

on Count Ones, and six years on Count Two, to run concurrently. (CR, pp. 81-88) The

trial court certified his right of appeal. (CR, p. 63)

        Appellant filed his timely Notice of Appeal, on June 30, 2015. (CR, p.65)



                      STATE’S REPLY TO APPELLANT’S ISSUE


       The State proved its case beyond a reasonable doubt to the jury which heard the

testimony and returned a verdict of guilty to the charge. The jury heard the testimony,

weighed the evidence and returned a guilty verdict. The jury is the sole judge of the

witnesses’ credibility and the weight to be given their testimony. An appellant’s

interpretation of the evidence is not controlling, the jury is the final arbiter of the facts


                                               1
presented.

                                   STATEMENT OF FACTS

       The state’s first witness was Sinton Police Officer Aaron Putnam. (RR, pp. 32-58)

Officer Putnam first noticed appellant at 11:30 p.m. with a beer bottle in his hand in the

700 block of Ave C, in Sinton TX. (RR, p. 34, lines 16-20) Officer Putnam then

proceeded to the 700 block of Ave. D to see if the appellant was going to go to this

address as he had a criminal trespass warning not to be on the property. (RR, pp. 34-35,

p. 34, lines 23-25 and p. 35 lines 1-3) Officer Putnam observed Appellant enter the

property and made contact with Appellant and attempted to arrest appellant for the

criminal trespass violation. (RR, p. 36, lines 7-16) When Officer Putnam tried to arrest

the Appellant he began to resist. (RR, p. 36 Lines 21-24) Officer Putnam observed a

baggie in Appellant’s hand, asked him what he had and Appellant tried to conceal what

he had in his hand from the officer. (RR, p. 37, lines 18-22) Officer Putnam testified that

after he asked Appellant what he had in his hand he began to resist even more and Officer

Christian Martinez arrived to help him with the arrest of the Appellant. (RR, p. 38, lines

9-17) Officer Putnam testified that he and Officer completed handcuffing Appellant and

that Officer Martinez saw something in Appellant’s hand. (RR, p. 38, lines 23-24) Officer

Putnam testified that Appellant then switched the baggie from his right hand to his left

hand and attempted to grind up what was in his hand by rapidly clinching his left hand.

(RR, p. 39, lines 1-6) Officer Putnam testified that he had to physically pry open the

Appellant’s hand to remove the baggie. (RR, p.42, lines 1-2) The baggie once recovered

from the Appellant’s hand was bagged as evidence and transported to the evidence locker

                                             2
at the police station. (RR, p. 39, lines 16-19)

       Officer Christian Martinez was the state’s second witness who testified that he

responded as backup to Officer Putnam and helped secure Appellant. He did offer

testimony that Appellant was concealing the baggie in his hand and that Officer Putnam

had to hit the Appellant’s hand to get him to turn loose of the baggie in his hand. (RR,

p.67, lines 12-18)

       Detective Roush, Sinton Police Department, testified next, and stated he retrieved

baggie that was in evidence and transported it to DPS crime lab in Corpus Christi, Texas.

(RR, pp. 75-76)

       Natalia Sanchez, Lab Technician with the DPS tesitified that she tested the

substance in the baggie (States Exhibit #1) and it was cocaine. (RR, pp. 79-89)

       The State then rested on its case in chief (RR, p.89)

       The Appellant called two witnesses to testify, Delphino Bustamante and the

Appellant’s girlfriend Mary E. Reese.

       Delphino Bustamante testified that he had on a day previous to the night Appellant

was arrested he had taken the Appellant to deliver some medicine to Mary E. Reese at her

apartment and that the Appellant was arrested by Officer Putnam for trespassing on the

apartment grounds when they arrived.(RR, pp. 92-97)

       Mary E. Reese, testified that in her opinion the Sinton Police didn’t like the

Appellant because she was married previously to a Sinton Police officer and that on the

night in question she didn’t see a baggie of cocaine in the Appellant’s hand when he was

arrested.(RR, pp.98-119)

                                                  3
                              SUMMARY OF THE ARGUMENT

       Reply to Appellant’s Sole Issue: The State presented sufficient evidence to

support the jury’s finding that Appellant had, beyond a reasonable doubt, committed the

offense of Tampering With Evidence. (CR, pp.35-36)

                                   Argument and Authorities

       The standard for reviewing a case for legal sufficiency of evidence to support a

verdict is the Jackson v Virginia standard, which asks whether a jury was rationally

justified in finding guilt beyond a reasonable doubt when the evidence is considered in

the light most favorable to the verdict. Brooks v State, 323 S.W.3d 383 (Tex.Crim App.

2010) Appellant’s whole argument is based on his interpretation of the evidence. A

review of the evidence in the record of this case does not support his interpretation.

       Appellant argues that he didn’t “know” that an official investigation was in

progress because previous trespassing charges against him had been dismissed or “no

charged”. This conveniently ignores the fact that appellant while being arrested for the

trespass warning from the apartment complex, he was found with a baggie in his hand

that he was concealing. The officers told him why he was being arrested as was testified

to Mary E. Reese, Appellant’s girlfriend (RR, p.103, lines 13-15). During this arrest he

tried to conceal the evidence as per Officer Putnam’s testimony (RR, p. 37, lines 18-22)

and Officer Martinez’s testimony (RR, p.66, lines 15-22).

       The next point, was there evidence that the jury could consider that the Appellant

had the intent to impair the availability of the evidence. This was answered by Officer

Putnam’s testimony that the appellant was trying to grind the evidence up in his

                                             4
hand.(RR, p39, lines 1-6) Officer Martinez testified that after repeatedly telling Appellant

to open his hand it was necessary to hit the Appellant’s hand to retrieve the

evidence.(RR, p.67, lines 7-18)

       Viewing the evidence in the light most favorable to the verdict under a legal-

sufficiency standard means that the reviewing court is required to defer to the jury's

credibility and weight determinations because the jury is the sole judge of the witnesses'

credibility and the weight to be given their testimony. Brooks v State, 323 S.W.3d 383

(Tex.Crim App. 2010.) The Appellant wishes for this court to believe his interpretation of

the evidence when the jury did not. The State presented ample evidence for the jury to

find the elements of the charge submitted to jury on Tampering With Evidence. (CR,

pp.35-36)

                                               PRAYER

       The Appellant has presented no grounds in his appeal which justify the relief

sought. Accordingly, Appellee respectfully prays that this Honorable Court affirm the

judgment of the trial court in all respects.



                                                   Respectfully submitted,

                                                   Michael Welborn
                                                   District Attorney

                                                   /s/ Samuel B. Smith, Jr.


                                                   Samuel B. Smith, Jr.
                                                   Assistant District Attorney

                                               5
                                                 State Bar No. 18682570
                                                 P.O. Box 1393
                                                 Sinton, Texas 78387
                                                 Tel. (361) 364-9390
                                                 Fax (361) 364-9490
                                                 samuel.smith@co.san-patricio.tx.us


                                CERTIFICATE OF SERVICE

       I hereby certify that on this 25th day of November, 2015, a true and correct copy of
the above and foregoing instrument was faxed to Irma M. Sanjines, Attorney for
Appellant, P.O. Box 18993, Corpus Christi, Texas 78480 and 361-883-9650.


                                                 /s/ Samuel B. Smith, Jr.
                                                 Samuel B. Smith, Jr.
                                                 Assistant District Attorney



                             CERTIFICATE OF COMPLIANCE

     In compliance with Texas Rules of Appellate Procedure 9.4(i)(3), I certify that the
number of words in this brief, excluding those matters listed in Rule 9.4(i)(1), is 1624.




                                                 /s/ Samuel B. Smith, Jr.
                                                 Samuel B. Smith, Jr.
                                                 Assistant District Attorney




                                             6
