                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-07-00238-CR

CHARLES GENE SCOTT,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 413th District Court
                             Johnson County, Texas
                             Trial Court No. F41235


                          MEMORANDUM OPINION


      Appellant Charles Gene Scott was charged by indictment with the offense of

tampering with physical evidence. After a bench trial, the court found Scott guilty and

assessed his punishment, enhanced by two previous felony convictions, at twelve years’

imprisonment. By one issue, Scott contends that the evidence is legally insufficient to

support his conviction. We will affirm.

      When reviewing a challenge to the legal sufficiency of the evidence to establish

the elements of a penal offense, we must determine whether, after viewing all the
evidence in the light most favorable to the verdict, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Our duty is to

determine if the finding of the trier of fact is rational by viewing all of the evidence

admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d

418, 422 (Tex. Crim. App. 1992). In doing so, any inconsistencies in the evidence are

resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000).

         The evidence viewed in the light most favorable to the finding of guilt is as

follows. Sometime after 5:00 a.m. on January 21, 2007, Cleburne Police Officer Brian

Proctor observed Scott leaving the front yard of the residence located at 319

Hollingsworth in Cleburne, Texas, a “known location for using and distributing

narcotics,” specifically crack-cocaine. Officer Proctor recognized Scott as a resident of

the neighborhood. On an earlier occasion, Scott had informed Officer Proctor that he

had been hooked on crack-cocaine for approximately thirty years, and Officer Proctor

had told Scott to stay away from 319 Hollingsworth if he wanted to “get clean.” Scott

began riding down the street on a bicycle that had no front or rear light, which is a

violation of a city ordinance.     Officer Proctor had stopped Scott on several prior

occasions for not having a light on his bicycle, and during at least one of the prior stops,

Officer Proctor had searched Scott’s pockets. Scott saw the police officers and was

concerned about riding his bicycle by them because his flashlight was going out. Scott

saw Officer Proctor pulling in behind him in a patrol car. Just before Officer Proctor

Scott v. State                                                                         Page 2
activated his emergency lights, Scott swerved and threw something into a nearby

grassy area before returning to the street. It was still very dark in the area that morning.

Officer Proctor then stopped Scott and asked him what he was doing out at that time of

the morning and what the object was that had come from his hand. Scott replied that

he was just riding his bicycle. Officer Proctor then searched the area where he had

observed Scott throw something from his hand and found “a metal pipe with burnt

residue on either end with a metal Brillo Chore Boy pad inside of it,” an object that

Officer Proctor described as “commonly used to smoke crack-cocaine.”

        A person commits the offense of tampering with physical evidence if, knowing

that an offense has been committed, he alters, destroys, or conceals any record,

document, or thing with intent to impair its verity, legibility, or availability as evidence

in any subsequent investigation of or official proceeding related to the offense. TEX.

PEN. CODE ANN. § 37.09(d)(1) (Vernon 2003). It is not enough that the person know his

action will impair the availability of the object as evidence; rather, the person must

intend to impair the object’s availability. Stewart v. State, 240 S.W.3d 872, 874 (Tex. Crim.

App. 2007). In other words, the person’s conscious objective or desire must be to impair

the object’s availability as evidence in any subsequent investigation. Id.; see TEX. PEN.

CODE ANN. § 6.03(a) (Vernon 2003).

        Citing Pannell v. State, 7 S.W.3d 222, 223-24 (Tex. App.—Dallas 1999, pet. ref’d),

Scott first argues that the evidence is legally insufficient to support his conviction

because “the only investigation that existed at the time Appellant dropped the crack

pipe was violation of a municipal ordinance against bicycle riding with insufficient

Scott v. State                                                                         Page 3
lighting.”       Pannell, however, is distinguishable and, thus, does not support Scott’s

conclusion.

        In Pannell, a police officer initiated a traffic stop after he observed Pannell driving

in a school zone at an excessive speed. After the officer turned on his emergency lights,

he observed Pannell throw a cigarette out of his car window. He then saw Pannell

empty the contents of a small plastic bag through the window. After Pannell stopped,

he told the officer that he had thrown marijuana from the car. The court of appeals

reversed Pannell’s conviction for destroying evidence, holding that at the time Pannell

threw the marijuana from his car, the officer was investigating only a speeding

violation. Because no investigation in which the marijuana would serve as evidence

was pending or was in progress at the time he threw it from his car window, there was

no evidence that Pannell destroyed the marijuana knowing that an investigation was in

progress.1 Id. at 224.

        Unlike the defendant in Pannell who was apparently charged under Penal Code

subsection 37.09(a)(1), which requires knowledge that an investigation was either

pending or in progress, id. at 223 (citing TEX. PEN. CODE ANN. § 37.09(a)(1)), Scott was

charged under subsection 37.09(d)(1). Under subsection 37.09(d)(1), the State is not

required to prove that Scott knew an investigation was pending or in progress, TEX.

PEN. CODE ANN. § 37.09(d)(1); therefore, the status of Officer Proctor’s investigation is

irrelevant.

1 The Court of Criminal Appeals recently concluded that Pannell erroneously added a mental-state
requirement that was not supported by the language of subsection 37.09(a)(1). See Williams v. State, 270
S.W.3d 140, 144 (Tex. Crim. App. 2008). However, because Pannell is distinguishable, we need not discuss
Williams.

Scott v. State                                                                                   Page 4
        Next, citing Hollingsworth v. State, 15 S.W.3d 586, 595 (Tex. App.—Austin 2000,

no pet.), Scott contends that the evidence is legally insufficient to support his conviction

because, instead of concealing the crack pipe, he exposed it to the arresting officer. But,

Hollingsworth is also distinguishable. In Hollingsworth, the defendant was pursued by a

police officer. He went behind a dumpster and spit out cocaine. There was evidence

that it is very common to carry cocaine in the mouth, often to avoid being detected.

However, the court held the evidence was insufficient to show the defendant concealed

the cocaine with the intent to impair its availability as evidence in some kind of

investigation, noting there was no evidence that the defendant saw the police officers in

the case and then put the evidence into his mouth in order to hide it from them. Id. at

595. Additionally, the court noted the defendant spit out the cocaine, exposing it to

view. Id.

        Scott argues that, similarly to the defendant in Hollingsworth, he normally carried

his crack pipe in his gloves and by dropping it, he was actually exposing it to view

rather than concealing it. But, the issue in this case is not whether Scott concealed the

crack pipe by carrying it in his gloves. The issue is whether Scott concealed the crack

pipe by throwing it into the grassy area.

        Viewing the evidence in the light most favorable to the verdict, we hold that a

rational trier of fact could have found that Scott concealed the crack pipe with the intent

to impair its availability as evidence in any subsequent investigation and that this

evidence is legally sufficient to support the trial court’s guilt finding.



Scott v. State                                                                        Page 5
        Finally, citing Stewart v. State, 240 S.W.3d 872, 874 (Tex. Crim. App. 2007), Scott

argues that there is no evidence of his intent to impair the availability of the crack pipe

in any subsequent investigation. Scott points to his testimony at trial in which he

stated, “Really for myself, I had forgot all about that, the metal pipe that was in my

glove.” However, we must view all of the evidence in the light most favorable to the

verdict. Adelman, 828 S.W.2d at 422. Furthermore, Scott’s conduct alone is sufficient to

infer intent. See Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); Tyler v.

State, 950 S.W.2d 787, 789 (Tex. App.—Fort Worth 1997, no pet.). As detailed above, the

evidence is legally sufficient to support the trial court’s finding that Scott intended to

impair the availability of the crack pipe as evidence in any subsequent investigation.

        Because the evidence is legally sufficient to support Scott’s conviction, we

overrule his sole issue and affirm the trial court’s judgment.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed April 29, 2009
Do not publish
[CR25]




Scott v. State                                                                       Page 6
