                                                                                                     ACCEPTED
        FILED                                                                                   13-14-00486-CR
IN THE 13TH COURT OF APPEALS                                                      THIRTEENTH COURT OF APPEALS
        CORPUS CHRISTI                                                                  CORPUS CHRISTI, TEXAS
                                                                                           3/10/2015 4:48:08 PM
                                                                                              DORIAN RAMIREZ
          3/10/15                                                                                        CLERK
DORIAN E. RAMIREZ, CLERK
BY DTello                                  No. 13-14-486-CR

                               IN THE THIRTEENTH COURT OF APPEALSRECEIVED IN
                                                           13th COURT OF APPEALS
                               CORPUS CHRISTI AND EDINBURG,  TEXAS
                                                        CORPUS  CHRISTI/EDINBURG, TEXAS
                                                                  3/10/2015 4:48:08 PM
           GERARDO HERNANDEZ, Appellant                            DORIAN E. RAMIREZ
                                                                          Clerk

           vs.

           STATE OF TEXAS, Appellee

                Appeal from Cause No. 13-CR-3484-C in the 94th Judicial District Court,
           Nueces County, Texas, the Hon. Bobby Galvan presiding


                                        APPELLANT’S BRIEF

           Respectfully submitted by:

           Donald B. Edwards
           State Bar No. 06469050
           Law Office of Donald B. Edwards
           P.O. Box 3302
           Corpus Christi, TX 78463-3302
           (361) 887-7007
           (361) 887-7009 (fax)



                                    Appellant requests oral argument
                                List of Parties

Appellant

Gerardo Hernandez
TDCJ# 01944495
Garza East Unit
4304 S HWY. 202
Beeville, TX 78102

Appellant’s Trial Counsel                    Appellant’s Appellate Counsel

Mr. Hector Rene Gonzalez                     Mr. Donald B. Edwards
Law Office of Hector Rene Gonzalez           Law Office of Donald B. Edwards
2818 S. Port. Ave.                           P.O. Box 3302
Corpus Christi, TX 78405                     Corpus Christi, TX 78463-3302


Appellee State of Texas Trial and Appellate Counsel

Ms. Elizabeth Schmidt (trial)
Mr. Doug Norman (appellate)
Asst. Nueces County District Attorneys
901 Leopard St.
Corpus Christi, TX 78401




                                         2
                                                 Table of Contents

List of Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Issue Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
     The evidence is insufficient to support the conviction.. . . . . . . . . . . . . . . . . 9
             Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
             The charged offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
             The evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
             The evidence is insufficient to show Appellant concealed any
                       evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Certificate of Compliance and Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16




                                                               3
                                      Index of Authorities

Cases

Barfield v. State, 63 S.W.3d 446 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . 10

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . 10

Hollingsworth v. State, 15 S.W.3d 586 (Tex. App.--Austin 2000, no pet.). . . . . . 12

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . . 9, 11

Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

King v. State, 895 S.W.2d 701 (Tex. Crim. App. 1995). . . . . . . . . . . . . . . . . . . . . . 9

Lujan v. State, No. 07-09-0036-CR, 2009 WL 2878092, 2009 Tex.App. LEXIS
7121 (Tex. App.--Amarillo Sept. 9, 2009, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 12

Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997). . . . . . . . . . . . . . . . . . . . . 10

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . 9

Powell v. State, 194 S.W.3d 503 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . 11

Rotenberry v. State, 245 S.W.3d 583 (Tex. App.-Fort Worth 2007, pet. ref'd). . . 12

Thornton v. State, 377 S.W.3d 814 (Tex. App.--Amarillo 2012, no pet.) .. . . . . . 12

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . 10

Williams v. State, 270 S.W.3d 140 (Tex. Crim. App. 2008).. . . . . . . . . . . . . . . . . 11

Young v. State, No. 07-09-0229-CR, 2010 WL 5129727, at *1-2, 2010 Tex. App.
LEXIS 9459,*3-4 (Tex. App.--Amarillo Nov. 30, 2010) . . . . . . . . . . . . . . . . . . . 12




                                                   4
Statutes

TEX. PENAL CODE ANN. §37.09. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11




                                                    5
                               Statement of the Case

       Gerardo Hernandez was indicted on February 27, 2014, for tampering with

physical evidence. CR 5. He waived a jury trial. CR 20. The court found him guilty

on July 21, 2014. RR Vol. 4, p. 7. A punishment hearing was conducted on July 31,

2014, after which the court assessed punishment at 2 years confinement in the

institutional division of the Texas Department of Criminal Justice. RR Vol. 4, p. 19.



                                  Issue Presented

       Whether the evidence is sufficient to support the conviction for tampering with

evidence when the indictment alleged only “concealing” the evidence and the

evidence was found in plain sight in a matter of seconds by the officer who examined

the place where the defendant allegedly dropped the evidence.



                                 Statement of Facts

       On October 13, 2013, Officer Christopher Meer was on routing patrol in

Corpus Christi near Ruth and Bluntzer. RR Vol. 2, p. 10, ll. 15-25. He initiated a

traffic stop on a vehicle he saw make a turn without signaling. RR Vol. 2, p. 11, ll.

20-25. The driver was John Bauer and the defendant was a passenger. RR Vol. 2, p.

12, ll. 1-10.

                                          6
      On the video SX1 Disk 1 at 0:45, the vehicle in which Appellant was a

passenger pulled to a stop. The driver tossed something out of his window. Nothing

can be seen coming out of the passenger side.

      At 1:45 Appellant is told to “put that out” and asked to step out of the vehicle.

At 1:52 he is stepping out with left hand on the door frame and his right hand near his

waist. Nothing is seen in his left hand. He shuts the door with his left hand which

then descends to his side in a normal motion. Nothing is seen in his hand or being

dropped to the ground. Appellant is searched for weapons. 1:55-2:30. He is then

told to put the cigarette (still in his right hand) down on the trunk. 2:32. He is then

taken away from the vehicle. At the 6:00 mark, the officer inspecting the vehicle

walks around the front of the vehicle. He makes it to the front passenger corner of

the car at 6:04, then bends down and picks up an object at 6:08. At 6:50 that officer

approaches another officer at the rear of the vehicle and says, “The passenger tried

to throw this out of the car.”

      The second officer asks Appellant why he did that, and Appellant said (7:01),

“I don’t know what that is.”

      The first officer says, “And he threw his pipe out on at me.” (7:03)

      Appellant is told he is there is a warrant for his arrest and he threw a crack pipe

and brillo pad under the car, but he denied doing the same. 10:25-10:45.

                                           7
        At 11:30 a voice is heard from Appellant saying, “I should have thrown it

forward. Why didn’t you throw it forward, you dumbass?” See also Disk 2 9:05-

9:12.

        In his testimony, Officer Meer stated he saw Appellant drop his hand toward

the runner of the vehicle, drop down real quick then come back up when he pushed

the car door open. RR Vol. 2, p. 14, ll. 22-24; p. 22, ll. 21-23.



                             Summary of the Argument

        The evidence to support a criminal conviction must be such that a rational trier

of fact can find all elements beyond a reasonable doubt.

        Tampering with evidence as charged in the indictment required Appellant to

“conceal” the evidence. Concealment requires the hiding of something or keeping

it from sight or discovery. Simply dropping a physical object at one’s location does

not constitute concealment for purposes of tampering with physical evidence.

        Since Appellant was only charged with concealment of evidence that was

found in plain sight by his person, the evidence is insufficient and an acquittal should

be ordered.




                                            8
                                      Argument

      The evidence is insufficient to support the conviction.

      Standard of review

      When deciding whether evidence is sufficient to support a conviction, a

reviewing court must assess all the evidence in the light most favorable to the verdict

to determine whether any rational trier of fact could find the essential elements of the

crime as charged in the indictment beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007).   This standard of review applies to cases involving both direct and

circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

Although the court of appeals is to consider all evidence presented at trial, it may not

re-weigh the evidence and substitute its judgment for that of the jury. King v. State,

29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The trier of fact is the exclusive judge

of the credibility of witnesses and of the weight to be given their testimony, and it is

the exclusive province of the trier of fact to reconcile conflicts in the evidence.

Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Evidence is

insufficient under this standard in four circumstances: (1) the record contains no

evidence probative of an element of the offense; (2) the record contains a mere

"modicum" of evidence probative of an element of the offense; (3) the evidence

                                           9
conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute

the criminal offense charged. Jackson, 443 U.S. at 314, 318 n. 11, 320, 99 S.Ct. at

2786, 2789 & n. 11; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)

      The legal sufficiency of the evidence is measured by the elements of the

offense as defined by a hypothetically correct jury charge for the case that would set

out the law, be authorized by the indictment, not unnecessarily increase the State's

burden of proof or unnecessarily restrict the State's theories of liability, and

adequately describe the particular offense for which the defendant was tried. Malik

v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). This standard applies to both

jury and bench trials. Id. However, the sufficiency of the evidence in a bench trial

is measured by the evidence adduced at both guilt-innocence and punishment phases.

Barfield v. State, 63 S.W.3d 446, 451 (Tex. Crim. App. 2001).

      In viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt of

an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In determining the

sufficiency of the evidence, a reviewing court examines "whether the necessary

inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict." Id. (quoting

                                          10
Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)). Finally, the

"cumulative force" of all the circumstantial evidence can be sufficient for a trier of

fact to find the accused guilty beyond a reasonable doubt, even if every fact does not

"point directly and independently to the guilt of the accused." See Powell v. State,

194 S.W.3d 503, 507 (Tex. Crim. App. 2006). However, the trier of fact’s decision

must be rational and thus cannot be upheld if it relies on evidence of physical

impossibilities or speculation.



       The charged offense

       Tampering with physical evidence with three elements: (1) Knowing that an

investigation or official proceeding is pending or in progress or that an offense has

been committed; (2) a person alters, destroys, or conceals any record, document, or

thing; (3) with intent to impair its verity, legibility, or availability as evidence in the

investigation or official proceeding or subsequent investigation or proceeding relating

to the offense. Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008); TEX.

PENAL CODE ANN. §37.09(a)(1) and (d)(1). The indictment alleged only that

Appellant intentionally or knowingly concealed the physical evidence but

alternatively alleged the concealment with knowledge of an investigation or

knowledge that an offense had been committed. CR 4-5.

                                            11
      The Court of Criminal Appeals has not yet addressed the meaning of the term

"conceal" in section 37.09, but courts of appeals, including this court, have addressed

it. The Fort Worth Court of Appeals held the word means "the act of removing from

sight or notice; hiding." Rotenberry v. State, 245 S.W.3d 583, 589 (Tex. App.-Fort

Worth 2007, pet. ref'd). The Amarillo Court of Appeals found it to mean "to prevent

disclosure or recognition of or "to place out of sight" in Lujan v. State, No.

07-09-0036-CR, 2009 WL 2878092, 2009 Tex.App. LEXIS 7121 (Tex. App.-

-Amarillo Sept. 9, 2009, no pet.) (mem. op., not designated for publication), and also

have applied a definition "to hide or to keep from observation, discovery or

understanding." Young v. State, No. 07-09-0229-CR, 2010 WL 5129727, at *1-2,

2010 Tex. App. LEXIS 9459,*3-4 (Tex. App.--Amarillo Nov. 30, 2010) (mem. op.,

not designated for publication), citing Hollingsworth v. State, 15 S.W.3d 586, 595

(Tex. App.--Austin 2000, no pet.). See also Thornton v. State, 377 S.W.3d 814, 817

(Tex. App.--Amarillo 2012, no pet.) (mem. op., not designated for publication)

(noting same definitions).



      The evidence

      The evidence in this case presented at the guilt-innocence phase includes a

video of the stop and confrontation and testimony of the officers who conducted the

                                          12
stop. Appellant testified on his own behalf in the punishment phase. RR Vol. 4, pp.

10-13. He was never asked during that testimony whether he committed the offense

and gave no testimony suggesting that he did.

      On the video SX1 Disk 1 at 0:45, the vehicle in which Appellant was a

passenger pulled to a stop. The driver tosses something out of his window. Nothing

can be seen coming out of the passenger side.

      At 1:45 Appellant is told to “put that out” and asked to step out of the vehicle.

At 1:52 he is stepping out with left hand on the door frame and his right hand near his

waist. Nothing is seen in his left hand. He shuts the door with his left hand which

then descends to his side in a normal motion. Nothing is seen in his hand or being

dropped to the ground. Appellant is searched for weapons. 1:55-2:30. He is then

told to put the cigarette (still in his right hand) down on the trunk. 2:32. He is then

taken away from the vehicle. At the 6:00 mark, the officer inspecting the vehicle

walks around the front of the vehicle, then bends down near the passenger door. At

6:50 that officer approaches another officer at the rear of the vehicle and says, “The

passenger tried to throw this out of the car.”

      The second officer asks Appellant why he did that, and Appellant said (7:01),

“I don’t know what that is.”

      The first officer says, “And he threw his pipe out on at me.” (7:03)

                                          13
        Appellant is told he is there is a warrant for his arrest and he threw a crack pipe

and brillo pad under the car, but he denied doing the same. 10:25-10:45.

        At 11:30 a voice is heard from Appellant saying, “I should have thrown it

forward. Why didn’t you throw it forward, you dumbass?” See also Disk 2 9:05-

9:12.

        Furthermore, Officer Meer testified he saw the motion of Appellant’s hand and

knew precisely where to find any object. RR Vol. 2, p. 14, ll. 22-25; p. 22, ll. 21-23.



        The evidence is insufficient to show Appellant concealed any evidence.

        From this evidence, it is impossible for a rational trier of fact to find Appellant

concealed anything. The object was found in plain sight outside a vehicle Appellant

exited. This case is nearly identical to Hollingsworth in which the Court of Appeals

held the evidence insufficient to support a conviction for tampering.

        In Hollingsworth, the defendant ducked behind a dumpster then spat rocks of

cocaine out of his mouth. Hollingsworth, 15 S.W.3d at 590. The Austin Court of

Appeals found there was no evidence to support finding defendant guilty of

tampering with evidence. Id. at 595. The Austin Court of Appeals held the

defendant’s actions made the evidence visible to the police officers. Id.

        That same principle holds here. Even assuming Appellant dropped the items,

                                            14
he did so in plain sight of the officers, and dropped the items in a place where they

were easily found. The items were not thrown away from the vehicle where it would

take a lengthy search to locate it. The items were not obscured from sight by any

other object. The items were found in plain sight by the officer the moment he

stepped around the front of the vehicle. There were only four seconds elapsed from

the time the officer reached the front corner of the vehicle and picked up the first

object alleged to be drug paraphernalia and only one minute by which time both items

were found. During that minute, the investigating officer took time to place the first

item on the trunk of the car and converse with his fellow officer.

      A statement by Appellant that the object wasn’t his does not create a

concealment where none existed. His statement that he “should have thrown it

forward” is no admission of concealment or even attempt to conceal, as it does

nothing more than suggest Appellant had an after the fact awareness that he might

have been able to conceal the evidence if he had taken a different course of action.

Even if a trier of fact could be allowed to infer Appellant had an intent to conceal,

that intent cannot create a concealment where none exists.

      There being no evidence of “concealment,” a rational trier of fact could not

find beyond a reasonable doubt that Appellant concealed any evidence. Accordingly,

the judgment should be reversed and an acquittal ordered.

                                         15
                                     Prayer

      Appellant, Gerardo Hernandez, respectfully requests this Honorable Court to

reverse the judgment of the court below and order an acquittal.

                                             Respectfully submitted,

                                              /s/ Donald B. Edwards
                                             Donald B. Edwards
                                             State Bar No. 06469050
                                             Law Office of Donald B. Edwards
                                             P.O. Box 3302
                                             Corpus Christi, TX 78463-3302
                                             (361) 887-7007
                                             (361) 887-7009 (fax)
                                             Attorney for Appellant

                     Certificate of Compliance and Service

      I, Donald B. Edwards, certify that this brief contains 2,229 words in those
matters not exempted under Rule 9. A copy of this brief is being delivered on March
10, 2015, via copy forwarding service of the electronic filing system to Mr. Doug
Norman at his email addresses of douglas.norman@nuecesco.com and
douglas.norman@co.nueces.tx.us.

                                             /s/ Donald B. Edwards
                                             Donald B. Edwards




                                        16
