                          NUMBER 13-13-00067-CR
                          NUMBER 13-13-00068-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

FELIPE DIAZ,                                                           Appellant,

                                        v.


THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 130th District Court
                      of Matagorda County, Texas.


                       MEMORANDUM OPINION
    Before Chief Justice Valdez, Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria
      By two issues, appellant Felipe Diaz appeals his conviction for tampering with

physical evidence and possession of less than one gram of cocaine with intent to

deliver. See TEX. PENAL CODE ANN. § 37.09 (West 2011); TEX. HEALTH & SAFETY CODE

ANN. § 481.112(b) (West 2010). We affirm.
                                               I. BACKGROUND

        On May 19, 2010, Chief David Miles of the Palacios Police Department went to

appellant’s house with a group of officers to execute a search warrant. Chief Miles

obtained the warrant after a confidential informant told him that appellant was selling

cocaine out of his house. Chief Miles knocked on the front door and announced that

they were police and there to execute a search warrant. When there was no answer,

Chief Miles instructed Officer Robin Riley to try to enter through the back door while

Chief Miles tried to break down the front door. Officer Riley gained entry first, identified

herself as a police officer with a search warrant, and encountered appellant “coming out

of [a] room across the hallway.” Officer Riley testified that appellant said that he had

just been in the bathroom. Officer Riley brought appellant to the front of the house at

the same time that Chief Miles finally gained entry through the reinforced front door by

using a sledgehammer. Chief Miles asked appellant why he didn’t answer the door, and

appellant repeated that he “was in the bathroom.” Chief Miles and the officers placed

handcuffs on appellant and commenced a search of the house. The search disclosed a

safe in appellant’s bedroom that contained, among other things, a rock of crack cocaine,

various jewelry, bank wrappers for one-thousand dollar bills, and “marked” money used

by police in a previous controlled drug buy. 1 In the bathroom that appellant was exiting

when Officer Riley encountered him, police found cocaine around the rim of the toilet

and flecks of cocaine in the toilet water. The State charged appellant with one count of

tampering with physical evidence and one count of possession of less than one gram of

        1
          The search also disclosed a “shrine” in a cabinet with candles burning over a newspaper picture
of Chief Miles, a list of the names of other Palacios police officers who had participated in prior narcotics
investigations, and a separate list of the names of people in the local community who might be police
“snitches.”


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cocaine with intent to deliver. See TEX. PENAL CODE ANN. § 37.09; TEX. HEALTH &

SAFETY CODE ANN. § 481.112(b).              The jury found appellant guilty and assessed

punishment at twenty years’ imprisonment and a $5,000 fine on the evidence tampering

charge, and two years in state jail and a $5,000 fine on the possession charge. 2 This

appeal followed.

                                            II. DISCUSSION

   A. Sufficiency of the Evidence

       We understand appellant’s brief as raising two related points that the evidence

was insufficient to prove that: (1) appellant destroyed cocaine by flushing it down the

toilet, and (2) appellant knew that a narcotics investigation was ongoing at the time he

allegedly flushed the cocaine down the toilet.

       1. Standard of Review and Applicable Law

       In a legal sufficiency review, “a reviewing court views all of the evidence in the

light most favorable to the verdict to decide whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Garcia v. State,

367 S.W.3d 684, 686–87 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S.

307, 319 (1979)). “The reviewing court must give deference to the responsibility of the

trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). This same standard

applies to both circumstantial and direct evidence because “[c]ircumstantial evidence is

as probative as direct evidence in establishing the guilt of an actor, and circumstantial


       2
          The tampering with evidence charge was enhanced to a second-degree felony by a prior felony
conviction for delivery of a controlled substance. See TEX. PENAL CODE ANN. § 12.42(a) (West 2011).

                                                 3
evidence alone can be sufficient to establish guilt.” Merritt v. State, 368 S.W.3d 516,

525 (Tex. Crim. App. 2012) (citing Hooper, 214 S.W.3d at 13). If the record supports

conflicting inferences, we presume that the fact finder resolved the conflict in favor of

the prosecution and defer to that resolution. Id. (citing Jackson, 443 U.S. at 326).

       We measure the sufficiency of the evidence supporting a conviction by the

elements of the offense, which “are defined by the hypothetically correct jury charge for

the case.” Ramos v. State, 407 S.W.3d 265, 269 (Tex. Crim. App. 2013) (citing Malik v.

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “Such a charge would be 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 was

tried.” Malik, 953 S.W.2d at 240.

       The Texas Court of Criminal Appeals has explained that:

       Three elements define the offense of tampering with physical evidence:
       (1) knowing that an investigation or official proceeding is pending or in
       progress; (2) a person alters, destroys, or conceals any record, document,
       or thing, (3) with the intent to impair its verity, legibility or available as
       evidence in the investigation or official proceeding.

Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008) (citing TEX. PENAL CODE

ANN. § 37.09(a)(1)).    The statute requires “two different culpable mental states—

knowledge and intent.” Id. (citing Stewart v. State, 240 S.W.3d 872, 784 (Tex. Crim.

App. 2007)). “The statute requires the knowledge of an investigation and the intent to

impair the thing’s availability as evidence.”    Id.   Under the Texas Penal Code, “[a]

person acts knowingly, or with knowledge, with respect . . . to circumstances

surrounding his conduct when he is aware of the nature of his conduct or that the



                                             4
circumstances exist.” TEX. PENAL CODE ANN. § 6.03(c) (West 2011). “A person acts

intentionally, or with intent, with respect . . . to a result of his conduct when it is his

conscious objective or desire to . . . cause the result.” Id. § 6.03(a).

       The indictment in this case specifically alleged that appellant “knowing that an

investigation was in progress, to-wit: [n]arcotics investigation, intentionally or knowingly

[did] destroy drugs to-wit: cocaine, with intent to impair its availability as evidence in the

investigation.”

       2. Analysis

       Appellant first argues that the evidence is insufficient to show that he actually

destroyed cocaine by flushing it down the toilet. Appellant argues that the State did not

prove that he flushed the cocaine because it could have been introduced into the toilet

at any time during the day. Furthermore, if appellant had flushed the toilet immediately

before Officer Riley encountered him it would still have been refilling when Officer Riley

entered, but Officer Riley testified that she did not recall if she heard the sound of water

running as she entered the house.         Appellant contends that this indicates that the

cocaine was introduced into the toilet at an earlier time because Officer Riley recalled

hearing other noises during her entry, such as the noise from window air conditioning

units and the sounds of Chief Miles attempting to break through the front door with a

sledgehammer. Appellant’s argument is essentially that there is no direct evidence that

he flushed cocaine down the toilet, but the State may prove its case by circumstantial

evidence. As noted above, “[c]ircumstantial evidence is as probative as direct evidence

in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient

to establish guilt.” Merritt, 368 S.W.3d at 525. “In circumstantial evidence cases, it is



                                              5
not necessary that every fact and circumstance ‘point directly and independently to the

defendant’s guilt; it is enough if the conclusion is warranted by the combined and

cumulative force of all the incriminating circumstances.’” Temple v. State, 390 S.W.3d

341, 359 (Tex. Crim. App. 2013) (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex.

Crim. App. 1993)). The State presented evidence that: (1) Officer Riley encountered

appellant coming out of the bathroom where cocaine was found around the rim of the

toilet bowl and in the toilet water; (2) appellant twice told the police that he “was in the

bathroom” at the time that Chief Miles knocked on the door; and (3) there was no other

person in the house. Viewing this evidence as we must in the light most favorable to

the verdict, we conclude that a reasonable jury could infer from this evidence that

appellant had flushed cocaine down the toilet just prior to the time that Officer Riley

detained him in the hallway. 3 See Garcia, 367 S.W.3d at 686–87.

        Appellant next argues that there was no evidence that “[a]ppellant was aware the

police were there for the purpose of investigation of drugs,” so the State failed to prove

that he acted with the requisite intent to destroy the cocaine in order to impair its use as

evidence. See TEX. PENAL CODE ANN. § 37.09(a)(1). Appellant argues that he did not

hear either Chief Miles or Officer Riley identify themselves as police officers or,

alternatively, that the announcement was a general statement that an investigation was


        3
          We interpret appellant’s issue on appeal as arguing that there is no evidence that it was
appellant who flushed the cocaine down the toilet, but appellant’s issue also contains language that could
be read as challenging whether the evidence is sufficient to prove that appellant ever possessed any
more cocaine than what was found around the rim of the toilet bowl and in the toilet water, meaning that
no cocaine was actually destroyed. To the extent that appellant is making that argument, we conclude
that a reasonable jury could infer that appellant had flushed cocaine down the toilet based on the
evidence that there was cocaine found around the rim of the toilet bowl and in the toilet water, and
appellant had just exited the bathroom. See Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App.
2013) (observing that “[i]n circumstantial evidence cases, it is not necessary that every fact and
circumstance point directly and independently to the defendant’s guilt; it is enough if the conclusion is
warranted by the combined and cumulative force of all the incriminating circumstances”).

                                                    6
in progress and was not sufficient to inform appellant that he was being investigated for

drugs. Regarding the first part of the argument, the evidence is sufficient for the jury to

draw a reasonable inference that appellant heard the announcements and

acknowledged hearing them when he told both Officer Riley and Chief Miles that the

reason he did not answer the door was because he was “in the bathroom.”

      Regarding the second part of the argument, the Texas Court of Criminal Appeals

has expressly rejected the argument that the charged “person must be ‘aware that the

thing he altered, destroyed, or concealed was evidence in the investigation as it existed

at the time of the alteration, destruction, or concealment.’” Williams, 270 S.W.3d at 144

(quoting Pannell v. State, 7 S.W.3d 222, 223 (Tex. App.—Dallas 1999, pet. ref’d)). The

court distinguished Pannell, and held that the statute only requires two mental states:

“knowledge of an investigation and the intent—the conscious objective—to impair a

thing’s availability as evidence in the investigation.” Id. The statute does not require

that the destroyed thing be the type of evidence that the investigation in progress seeks,

only that the defendant knew that an investigation was in progress and intended to

prevent the destroyed thing’s use as evidence in that investigation. See id. at 145

(holding that the evidence was sufficient to convict the defendant for evidence

tampering when the defendant, knowing that a weapons investigation was in progress,

stepped on a crack pipe that had fallen from his clothes with the intent to prevent its use

as evidence against him in the investigation). In this case, there was sufficient evidence

to prove that appellant knew an investigation was underway based on the

announcements made by Chief Miles and Officer Riley, which appellant acknowledged

hearing while he was in the bathroom where cocaine was later discovered.



                                            7
      In sum, we conclude that the evidence is sufficient for a rational jury to find that

appellant destroyed cocaine by flushing it down the toilet when he knew that an

investigation was in progress and that he did so with the intent to destroy the cocaine in

order to impair its use as evidence as alleged in the indictment. See id.; Garcia, 367

S.W.3d at 686–87. We overrule appellant’s first issue.

   B. Ineffective Assistance of Counsel

      By his second issue, appellant argues that his trial counsel performed below the

standard for competent representation guaranteed under the state and federal

constitutions because counsel essentially admitted in his closing argument that

appellant was guilty of both the possession and the tampering with evidence charges.

      1. Standard of Review and Applicable Law

      We evaluate claims of ineffective assistance under the standards set forth by the

United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).

See Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.).

Under the Strickland standard, appellant must show by a preponderance of evidence

that: (1) trial counsel’s    representation fell below an objective         standard    of

reasonableness; and (2) there is a reasonable probability that the result of the

proceeding would have been different but for the attorney’s deficient performance.

Strickland, 466 U.S. at 687.    “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Ex parte Ellis, 233 S.W.3d 324, 330–31 (Tex.

Crim. App. 2007). If an appellant fails to prove one prong of the test, we do not need to

address the other prong. See Strickland, 466 U.S. at 697; Garcia v. State, 57 S.W.3d

436, 440 (Tex. Crim. App. 2001).



                                            8
      When evaluating the quality of trial counsel’s representation, we look to “the

totality of the representation and the particular circumstances of each case in evaluating

the effectiveness of counsel.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). Even though “a single egregious error of omission or commission” can constitute

ineffective assistance, the Texas Court of Criminal Appeals has been hesitant to

designate any particular error as ineffective assistance per se. Id. We apply “a strong

presumption that counsel's conduct fell within the wide range of reasonable professional

assistance.” Id. Allegations of ineffectiveness must therefore be “firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Id.

(citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Direct appeal

is usually inadequate to make an ineffectiveness claim because the record is frequently

undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). The

Texas Court of Criminal Appeals has explained that “trial counsel should ordinarily be

afforded an opportunity to explain his actions before being denounced as ineffective.”

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (citing Bone v. State, 77

S.W.3d 828, 836 (Tex. Crim. App. 2002)). Unless counsel had an opportunity to explain

his trial strategy, Texas appellate courts should “not find deficient performance unless

the challenged conduct was ‘so outrageous that no competent attorney would have

engaged in it.’” Goodspeed, 187 S.W.3d at 392 (quoting Garcia, 57 S.W.3d at 440).

      2. Analysis

      Appellant argues that his trial counsel was ineffective because he essentially

conceded appellant’s guilt on both the possession charge and the tampering charge.

Trial counsel made this statement as part of his closing argument to the jury:



                                            9
       Is it beyond a reasonable doubt to believe that [appellant] was in there
       using crack cocaine and he hears a noise, hears the banging, the air-
       conditioners are running, it’s early in the morning and he takes whatever
       he’s got, shakes it down in there, puts the can in there and goes out to find
       out who it is? Is that beyond a reasonable doubt? Is that – is that a real
       possibility? There certainly are other possibilities, and that’s what the
       State’s here about. But there are alternate possibilities as well and I
       suggest to you that my client being a user not a dealer was doing
       something to that effect at the time.

Later in his closing statement, counsel also said that “yes, [appellant is] guilty of

possession of a controlled substance.”           Appellant argues that these statements

constituted an admission of guilt on both charges and that the admission constituted

deficient performance because “[f]or an advocate to admit his client’s guilt is tantamount

to the prosecution of his own client.” We interpret appellant as asserting that his case is

one of the “narrow class of cases where the particular circumstances ‘are so likely to

prejudice the accused that the cost of litigating their effect in a particular case is

unjustified.’” United States v. Williamson, 53 F.3d 1500, 1510 (5th Cir. 1995) (quoting

United States v. Cronic, 466 U.S. 648, 687 (1984)). If a defendant can prove that such

circumstances exist in his case, we will presume prejudice. Id. at 1511. The Fifth

Circuit has held that “the admission by counsel of his client’s guilt to the jury[]

represents a paradigmatic example of the sort of breakdown in the adversarial process

that triggers a presumption of prejudice.” Id.

       We disagree that trial counsel’s admissions rose to the level of an admission of

guilt. In cases where courts found that a defendant’s trial counsel performed deficiently

by admitting the defendant’s guilt during closing argument, the defendant’s trial counsel

admitted the only contested issues. Compare United States v. Swanson, 943 F.2d

1070, 1074 (9th Circ. 1991) (finding that trial counsel caused a “breakdown in our



                                            10
adversarial system of justice” when he admitted that “there was no reasonable doubt”

concerning whether the defendant was guilty of the bank robbery charge) with Hathorn

v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992) (finding that it was not ineffective

assistance to concede that the defendant killed his father but argue to the jury that the

defendant was actually guilty of a lesser included offense); see Williamson, 53 F.3d at

1511 (collecting cases similar to Swanson). In this case, in contrast, counsel contested

elements of both of the charged offenses.

          Regarding the first offense, the State charged appellant with possession of

cocaine in an amount less than one gram with intent to deliver. See TEX. HEALTH &

SAFETY CODE ANN. § 481.112(b). The hypothetically correct jury charge for that offense

required the State to prove that appellant: (1) knowingly or intentionally, (2) possessed,

(3) cocaine, (4) in an amount of less than one gram, (5) with the intent to deliver the

cocaine. Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d).       Appellant’s trial counsel admitted that appellant possessed a controlled

substance, which is a lesser included offense of possession with intent to deliver, but

contested the issue of whether appellant intended to deliver the cocaine to anyone. 4

          Regarding the second charge, the offense of tampering with evidence has three

elements: “(1) knowing that an investigation or official proceeding is pending or in

progress; (2) a person alters, destroys, or conceals any record, document, or thing, (3)

          4
           Appellant argues additionally that this strategy had “no value” because the offense of
possession of less than a gram of cocaine, and possession of less than a gram of cocaine with intent to
deliver, are both state jail felonies with the same range of punishment. See TEX. HEALTH & SAFETY CODE
ANN. §§ 481.112(b), 481.115(b) (West 2010). However, as we explained, it is not ineffective assistance
of counsel to admit guilt but argue that a defendant is actually guilty of a lesser included charge. See
Hathorn v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992); see also Brown v. State, 866 S.W.2d 675,
681 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (“A defendant’s trial counsel does not necessarily
render ineffective assistance of counsel even by conceding the defendant’s guilt.”). We note that even
though appellant challenges his trial counsel’s decision to admit that appellant possessed cocaine,
appellant does not challenge the sufficiency of the evidence to support the verdict on that charge.

                                                  11
with the intent to impair its verity, legibility or available as evidence in the investigation

or official proceeding.” Williams, 270 S.W.3d at 142. Appellant’s trial counsel argued

strongly that even if appellant did destroy the cocaine, he could not have acted with the

intent to impair its use as evidence in an investigation because he was not aware of an

investigation. Because appellant has not established that his trial counsel admitted his

guilt, we conclude that appellant has not established the “the sort of breakdown in the

adversarial process that triggers a presumption of prejudice.” Williamson, 53 F.3d at

1511. Accordingly, we overrule appellant’s second issue.

                                        III. CONCLUSION

       We affirm the judgment of the trial court.



                                                    NORA L. LONGORIA
                                                    Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of January, 2014




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