                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-18-00070-CR
                               No. 10-18-00071-CR
                               No. 10-18-00072-CR

IAN TOLLIVER,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                       From the County Court at Law
                           Navarro County, Texas
          Trial Court Nos. C36848-CR, C37082-CR, and C37349-CR


                                   OPINION


      Ian Tolliver appeals from a conviction for the offense of tampering with physical

evidence (No. 10-18-00072-CR) and two revocations of his community supervision (Nos.

10-18-00070-CR & 10-18-00071-CR). In the appeal from the conviction for tampering with

evidence, Tolliver complains that the evidence was insufficient and that he was
egregiously harmed by the omission of an instruction on legal impossibility in the jury

charge during the guilt-innocence phase of the trial. In the appeals from the revocation

of his community supervision, Tolliver complains that the evidence was insufficient to

support the orders for him to pay his court-appointed attorney's fees in each of the two

proceedings. Because we find that there was no reversible error in the conviction for

tampering with physical evidence, we affirm the judgment of conviction in that

proceeding. Because we find that the award of attorney's fees was erroneously included

in those judgments in part, we modify the judgments to delete the order to pay his court-

appointed attorney's fees other than those that were included in the judgments placing

him on community supervision but otherwise affirm those judgments.

TAMPERING WITH PHYSICAL EVIDENCE

        In his first issue, Tolliver complains that the evidence was insufficient for the jury

to have found that he tampered with physical evidence because there was no evidence

that he put the marihuana in his mouth after a search warrant was procured in

accordance with the allegations in the indictment.

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

               When addressing a challenge to the sufficiency of the evidence, we
        consider whether, after viewing all of the evidence in the light most
        favorable to the verdict, any rational trier of fact could have found the
        essential elements of the crime beyond a reasonable doubt. Jackson v.
        Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State,
        514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the

Tolliver v. State                                                                               Page 2
        appellate court to defer "to the responsibility of the trier of fact fairly 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. We may not re-weigh the evidence or substitute our judgment for that
        of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
        2007). The court conducting a sufficiency review must not engage in a
        "divide and conquer" strategy but must consider the cumulative force of all
        the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate
        about the meaning of facts or evidence, juries are permitted to draw any
        reasonable inferences from the facts so long as each inference is supported
        by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex.
        Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
        S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder
        resolved any conflicting inferences from the evidence in favor of the verdict,
        and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
        Crim. App. 2012). This is because the jurors are the exclusive judges of the
        facts, the credibility of the witnesses, and the weight to be given to the
        testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
        Direct evidence and circumstantial evidence are equally probative, and
        circumstantial evidence alone may be sufficient to uphold a conviction so
        long as the cumulative force of all the incriminating circumstances is
        sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
        (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

        We measure whether the evidence presented at trial was sufficient to
        support a conviction by comparing it to "the elements of the offense as
        defined by the hypothetically correct jury charge for the case." Malik v.
        State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
        correct jury charge is 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." Id.; see
        also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law
        as authorized by the indictment" includes the statutory elements of the
        offense and those elements as modified by the indictment. Daugherty, 387
        S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).



Tolliver v. State                                                                           Page 3
          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 availability as evidence in the investigation or official

proceeding. TEX. PENAL CODE ANN. § 37.09(a)(1) (West 2011). These three elements

include two different culpable mental states—knowledge and intent. Stewart v. State, 240

S.W.3d 872, 874 (Tex. Crim. App. 2007). The statute requires the knowledge of an

investigation and the intent to impair a thing's availability as evidence. As defined by

the Texas Penal Code, "[a] person acts knowingly, or with knowledge, with respect . . . to

circumstances surrounding his conduct when he is aware . . . that the circumstances

exist."    TEX. PENAL CODE ANN. § 6.03(b) (West 2011). In contrast, "[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." TEX. PENAL CODE ANN. § 6.03(a)

(West 2011).

          Tolliver's indictment specifically alleged the following:    "knowing that an

investigation was in progress, to-wit: a search, pursuant to a search warrant, [Appellant]

intentionally and knowingly conceal[ed] a controlled substance, to wit: marijuana, with

intent to impair its availability as evidence in the investigation." Although the statute

applies to situations where an investigation is "pending or in progress," the offense

alleged in the indictment was limited to Tolliver knowing that an investigation was "in


Tolliver v. State                                                                    Page 4
progress," rather than "pending or in progress," and the language used in the indictment

controls our sufficiency review. See Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App.

2014) ("[T]he sufficiency of the evidence will be measured by the element that was

actually pleaded . . . ."); Barrow v. State, 241 S.W.3d 919, 923 (Tex. App.—Eastland 2007,

pet. ref'd) (explaining the difference between cases where the indictment alleges that an

investigation was "pending" and those cases where the indictment alleges "in progress").

Tolliver argues that because he did not know that a search was being conducted for

marihuana pursuant to a warrant prior to him putting the marihuana in his mouth, there

was no evidence that he knew that there was an investigation "in progress" for which the

marihuana would have been evidence.

        Tolliver asserts that the holding in Pannell v. State controls in this case. See Pannell

v. State, 7 S.W.3d 222 (Tex. App.—Dallas 1999, pet. ref'd). In Pannell, the court held that

the defendant had to "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." Pannell, 7 S.W.3d at 223 (Tex. App.—Dallas 1999, pet. ref'd); see Lumpkin v.

State, 129 S.W.3d 659, 663 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd) (applying this

rule to a case where "the State alleged only that appellant knew that an investigation was

'in progress,'" although rejecting it for cases where the indictment includes a "pending"

allegation). The Court of Criminal Appeals has criticized this rule because it adds an

additional mental-state requirement, which is not supported by the language of Section


Tolliver v. State                                                                        Page 5
37.09(a)(1) of the Penal Code. Williams v. State, 270 S.W.3d 140, 143-44 (Tex. Crim. App.

2008); see Lemarr v. State, 487 S.W.3d 324, 329 (Tex. App.—Amarillo 2016, no pet.). Even

so, under either Pannell or Lumpkin, the State adduced sufficient evidence of Tolliver's

mental state.

        Here, the evidence showed that the investigating officer informed Tolliver that he

was being investigated for possession and distribution of marihuana when he and his

companion were approached outside of a hotel room from where the officer could smell

marihuana. Tolliver and his companion refused a request for consent to search their hotel

room in response to a request by law enforcement. Tolliver and his companion were

placed in the back of separate patrol cars while law enforcement procured a warrant.

Tolliver was aware that the officers were getting a warrant to allow them to search his

hotel room and that they were investigating him for drugs. After the warrant was issued,

the investigating officer removed Tolliver from the patrol car and informed him that there

was a warrant. The officer noticed that Tolliver had something in his mouth. The officer

repeatedly asked and ordered Tolliver to spit out the substance, and Tolliver initially

refused. Tolliver moved the marihuana around in his mouth to attempt to conceal it

when the officer asked him to open his mouth. Tolliver's actions indicated that he knew

the officer was investigating him for narcotics when he attempted to conceal the evidence.

See Lewis v. State, 56 S.W.3d 617, 625-26 (Tex. App.—Texarkana 2001, no pet.)

(distinguishing its facts from Pannell "because the State showed he refused to spit out the


Tolliver v. State                                                                    Page 6
cocaine or otherwise allow its removal after being ordered to do so"); Barrow, 241 S.W.3d

at 923-24 (same). Tolliver eventually spit the substance out into the officer's hand.

Additionally, because Tolliver knew that he was being detained in order for the

investigating officers to procure a warrant to search for marihuana in the room in which

Tolliver admitted he was staying, a rational factfinder could have inferred that Tolliver

knew he was being investigated for possessing marihuana before he swallowed it.

Therefore, the State adduced sufficient evidence to show beyond a reasonable doubt that

Tolliver, knowing that an investigation was in progress, tampered with the evidence. We

overrule Tolliver's first issue.

JURY CHARGE ERROR

        In his second issue, Tolliver complains that the jury charge in the guilt-innocence

phase of the trial was erroneous because it did not include an instruction on legal

impossibility.      "Legal impossibility has been described as existing where the act if

completed would not be a crime, although what the actor intends to accomplish would

be a crime." Lawhorn v. State, 898 S.W.2d 886, 891 (Tex. Crim. App. 1995). Tolliver argues

that his intent to eat the marihuana that was in his immediate possession was immaterial

because it was impossible for him to conceal the rest of the marihuana that was in the

hotel room, which formed the basis of the investigation. He further contends that his

attempt to conceal the small amount of marihuana is immaterial because he would have




Tolliver v. State                                                                    Page 7
been unable to tamper with all of the evidence, that being the marihuana in the hotel

room.

        We review alleged jury charge error using the procedure set out in Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). First, we determine whether a charge

error occurred. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Then, if we find

error, we evaluate whether the error resulted in harm sufficient for reversal. Id.

        Tolliver has not set forth any legal authority to support his position that because

it was impossible to conceal all of the evidence, his attempt to conceal a portion of the

evidence should result in the inclusion of an instruction on legal impossibility in a

tampering with evidence prosecution. We do not find that he would be entitled to such

an instruction pursuant to the facts of this case. Therefore, we do not find that the jury

charge was erroneous and do not need to address harm. We overrule issue two.

COURT APPOINTED ATTORNEY'S FEES

        In his third and fourth issues, Tolliver complains that the judgments in the

revocations of his community supervision were erroneous because they order him to pay

court-appointed attorney's fees. The State agrees that the judgments should be modified

to delete the requirement to pay attorney's fees.

        To the degree that Tolliver's complaint involves the prior judgment requiring the

payment of court-appointed attorney's fees, that complaint has been waived because it

was not properly preserved by a complaint in a direct appeal from the judgment


Tolliver v. State                                                                    Page 8
originally imposing community supervision. See Wiley v. State, 410 S.W.3d 313, 321 (Tex.

Crim. App. 2013).      We note that the prior judgment is distinct from the separate

requirement that repayment of the attorney's fees in periodic payment was one of the

terms and conditions of community supervision. Because the court-appointed attorney's

fees were included in Tolliver's judgments placing him on community supervision,

Tolliver's failure to appeal from that judgment precludes this complaint. However, there

was no evidence introduced at the revocation hearing of a change in Tolliver's indigent

status.

          Texas Code of Criminal Procedure Article 26.05(g) requires a present

determination of financial resources and does not allow speculation about possible future

resources. Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). Tolliver had been

found to be indigent and there was no evidence that his status or financial condition had

changed. Therefore, the trial court had no authority to assess additional attorney's fees

against Tolliver for fees incurred after the judgments placing him on community

supervision. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Cates, 402 S.W.3d at 252.

Accordingly, we sustain Tolliver's third and fourth issues as they pertain to the

assessment of new attorney's fees.

CONCLUSION

          Having found that the evidence was sufficient and the jury charge was not

erroneous in Cause No. 10-18-00072-CR, we affirm the judgment of conviction. Having


Tolliver v. State                                                                  Page 9
found that the assessment of court-appointed attorney's fees in Cause Nos. 10-18-00070-

CR and 10-18-00071-CR was erroneous as to attorney's fees assessed after the January 30,

2017 judgments placing him on community supervision, we modify the trial court's

judgments to delete the imposition of the additional attorney's fees incurred after January

30, 2017. We affirm the judgments as modified.




                                                TOM GRAY
                                                Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins1
Affirmed; Modified and Affirmed as Modified
Opinion delivered and filed February 20, 2019
Publish
[CR25]




1The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013).


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