Opinion filed February 21, 2020




                                        In The


        Eleventh Court of Appeals
                                     __________

                                  No. 11-18-00052-CR
                                      __________

                     BILLY DOYCE BECK, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 244th District Court
                              Ector County, Texas
                      Trial Court Cause No. C-17-0893-CR


                     MEMORANDUM OPINION
       After a bench trial, the trial court convicted Billy Doyce Beck of tampering
with physical evidence. See TEX. PENAL CODE ANN. § 37.09(a)(1) (West 2016). The
trial court assessed his punishment at confinement for two years in the Institutional
Division of the Texas Department of Criminal Justice. In a single issue, Appellant
challenges the sufficiency of the evidence supporting his conviction. We affirm.
                                   Background Facts
      On April 14, 2017, Odessa Police Officer Roland Heyne received a call
regarding two men that were trespassing. As Officer Heyne responded to the call,
he saw two men, including Appellant, who matched the description of the suspects.
Officer Heyne pulled off the road, activated the overhead lights on his patrol car,
and prepared to contact the men. As he drove up to the two suspects, they were
standing beside a dumpster. Before Officer Heyne could get out of the police car,
Appellant reached into his pocket and appeared to drop something metallic in the
dumpster. Officer Heyne immediately detained the two men and searched the
dumpster because he suspected that Appellant had “dispos[ed] of something criminal
in nature.” During his search of the dumpster, Officer Heyne found a crack pipe and
three bags of trash. Other than the crack pipe and the bags of trash, there was nothing
else in the dumpster.
                                        Analysis
      In a single issue, Appellant challenges the sufficiency of the evidence
supporting his conviction. We review a challenge to the sufficiency of the evidence,
regardless of whether it is denominated as a legal or factual sufficiency challenge,
under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286,
288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).
      When conducting a sufficiency review, we consider all the evidence admitted
at trial and defer to the factfinder’s role as the sole judge of the witnesses’ credibility
and the weight their testimony is to be afforded. Winfrey v. State, 393 S.W.3d 763,
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767–68 (Tex. Crim. App. 2013); Brooks, 323 S.W.3d at 899; Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard accounts for the factfinder’s
duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict, and we defer
to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
      As relevant to Appellant’s conviction, a person commits the offense of
tampering with physical evidence if that 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.” PENAL § 37.09(a)(1).
      Appellant first contends that the State failed to prove beyond a reasonable
doubt that he was aware that an investigation was impending or in progress. With
respect to the knowledge element of Section 37.09(a)(1), the statute requires
evidence that the actor knew that an investigation or official proceeding was pending
or in progress. Id.; see Williams v. State, 270 S.W.3d 140, 142–43 (Tex. Crim. App.
2008). In the context of Section 37.09(a), “[a] person acts knowingly, or with
knowledge, with respect . . . to circumstances surrounding his conduct when he is
aware . . . that the circumstances exist.” Williams, 270 S.W.3d at 143 (quoting
PENAL § 6.03(b) (West 2011)).
      “[P]ending” in the tampering statute means “impending, or about to take
place.” Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.—Houston [1st Dist.]
2004, pet. ref’d); accord Barrow v. State, 241 S.W.3d 919, 923 (Tex. App.—
Eastland 2007, pet. ref’d) (applying Lumpkin, 129 S.W.3d at 663); see Thurston v.
State, 465 S.W.3d 255, 256–57 (Tex. Crim. App. 2015) (Keller, P.J., concurring).
As applied to the allegation in this case, the knowledge element could be satisfied
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with evidence that Appellant knew that an investigation by Officer Heyne was
impending or in progress because the indictment charged that an investigation was
either pending or in progress. See Barrow, 241 S.W.3d at 923.
      Officer Heyne’s testimony and the dashcam footage reflect that Officer Heyne
activated the overhead lights on his patrol car and drove straight at Appellant to the
point that he was in close proximity to Appellant. Approximately eight seconds
elapsed from the time that Officer Heyne activated the lights on his patrol car before
Appellant reached inside his pocket and threw the metallic object into the dumpster.
Appellant stood facing Officer Heyne’s patrol car as it approached Appellant with
the overhead lights activated.
      Appellant contends that Officer Heyne should have taken additional actions
other than turning on the overhead lights in order to put Appellant on notice about
an impending investigation. Specifically, Appellant argues that Officer Heyne
should have told Appellant that an investigation was pending or in progress,
activated his siren in conjunction with the overhead lights, spoken to Appellant
through the loudspeaker before exiting his patrol car, or followed Appellant for some
time with the overhead lights flashing. We disagree.
      Viewing the evidence in the light most favorable to the verdict, a reasonable
trier of fact could have found that Appellant knew that an investigation was either
pending or in progress. A police officer’s activation of the overhead lights on a
patrol car is a show of authority by the police that converts an encounter into a
seizure under the Fourth Amendment. See State v. Garcia-Cantu, 253 S.W.3d 236,
243 (Tex. Crim. App. 2008) (citing 4 Wayne R. LaFave, Search and Seizure § 9.4(a),
at 433–35 (4th ed. 2004)); see also Deloach v. State, No. 03-13-00049-CR, 2015
WL 756759, at *2 (Tex. App.—Austin Feb. 19, 2015, pet. ref’d) (mem. op., not
designated for publication); Gilbert v. State, 874 S.W.2d 290, 295 (Tex. App.—
Houston [1st Dist.] 1994). Even though the actions that Appellant suggests that
                                          4
Officer Heyne should have taken might have made it more apparent to Appellant
that an investigation was about to take place, those actions were not required. The
overhead lights alone were sufficient to alert Appellant to an impending
investigation.
      Appellant also contends that the State failed to establish a link between
Appellant and the crack pipe that Officer Heyne found in the dumpster. During a
legal sufficiency review, “[d]irect 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, 235 S.W.3d at 778 (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007)).
      In this case, even though the evidence linking Appellant to the crack pipe
is circumstantial, that evidence is sufficient to support the guilty verdict.
Officer Heyne testified that he saw something metallic in Appellant’s hand as he
drove up and that Appellant put that metallic object in the dumpster. Officer Heyne
further testified that the dumpster was empty except for three bags of trash and the
crack pipe and that the crack pipe was the only loose item found in the dumpster.
Officer Heyne also testified that, even though the area where this incident occurred
is known for narcotics, the narcotic typically used in the area was methamphetamine,
not crack. Based on Officer Heyne’s testimony, the evidence was sufficient to allow
a rational trier of fact to find beyond a reasonable doubt that there was a link between
Appellant and the crack pipe found in the dumpster.
      Finally, Appellant argues that the evidence was insufficient to support the
verdict because Officer Heyne’s testimony was not credible due to discrepancies
between Officer Heyne’s testimony and the dashcam footage. However, the trial
court, sitting as the factfinder, had the sole responsibility to determine if
Officer Heyne’s testimony was credible. See Winfrey, 393 S.W.3d at 768; Brooks,
                                           5
323 S.W.3d at 899; Clayton, 235 S.W.3d at 778. To the extent that there were any
inconsistencies in Officer Heyne’s testimony, it was the trial court’s duty to resolve
those inconsistencies. See Clayton, 235 S.W.3d at 778. Therefore, we presume that
the trial court resolved any discrepancies between the dashcam footage and
Officer Heyne’s testimony in favor of the guilty verdict, and we defer to that
determination in reviewing the sufficiency of the evidence. See Jackson, 443 U.S.
at 326; Clayton, 235 S.W.3d at 778. Based on that standard, Officer Heyne’s
testimony is evidence that we can consider in our sufficiency review—despite any
inconsistencies.
        Because there was sufficient evidence to show that Appellant had knowledge
of an impending investigation and that there was a link between Appellant and the
crack pipe, we overrule Appellant’s sole issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


February 21, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.


        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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