Opinion filed July 12, 2018




                                           In The


           Eleventh Court of Appeals
                                       __________

                                 No. 11-17-00242-CR
                                     __________

                  RANDY ABUNDIO BARRON, Appellant
                                              V.
                       THE STATE OF TEXAS, Appellee


                      On Appeal from the 106th District Court
                              Dawson County, Texas
                          Trial Court Cause No. 17-7756


                       MEMORANDUM OPINION
       The jury found Appellant, Randy Abundio Barron, guilty of tampering with
or fabricating physical evidence.1 In the punishment phase of trial, Appellant
pleaded true to the enhancement paragraphs in the State’s notice, and the jury
assessed punishment at confinement for twenty-five years, which was the minimum

       1
        See TEX. PENAL CODE ANN. § 37.09(a)(1) (West 2016).
sentence under the applicable enhancement statute.2 The trial court sentenced
Appellant accordingly. Appellant raises one issue on appeal. We affirm.
                                       I. Evidence at Trial
      Officer Jocelyn Renee Alcantar, of the Lamesa Police Department, received a
call about a suspicious person with dark clothing in a residential area. She then went
to the residential area to see if she could find the person that matched the description.
Officer Alcantar testified that Appellant matched the description and was in the area.
Wearing her uniform and badge, Officer Alcantar approached Appellant.
Officer Alcantar got out of her patrol car, identified herself as a police officer, and
told Appellant that he matched the description of a suspicious person in the area.
Officer Alcantar testified that she smelled a “strong odor of marijuana” and asked
Appellant if she could “pat him down.” Appellant “then reached in his coat pocket,”
pulled some “foil” out, and put it in his mouth. Officer Alcantar could see a “green
leafy substance” and the foil in Appellant’s mouth.            Officer Alcantar asked
Appellant to spit out the substance, but Appellant refused and swallowed some of it.
                                               II. Analysis
      Appellant’s sole complaint is that the State adduced insufficient evidence to
establish his conviction for tampering with or fabricating physical evidence as
charged in the indictment. We review Appellant’s sufficiency challenge under the
Jackson standard and “examine all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and any reasonable inferences
from it, any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt.” Nelson v. State, 504 S.W.3d 410, 411 (Tex.




      2
       See id. § 12.42(d) (West Supp. 2017).


                                                   2
App.—Eastland 2016, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
      Appellant argues that there was no evidence that he knew the police were
investigating him for possession of narcotics at the time he put marihuana in his
mouth. The grand jury alleged in the indictment that Appellant “destroy[ed] and
conceal[ed] a suspected controlled substance” with the knowledge “that an
investigation was in progress” and “with intent to impair its verity and availability
as evidence in the investigation.” Although the statute applies to situations where
an investigation is “pending or in progress,”3 the grand jury alleged in the indictment
that Appellant knew that an investigation was “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”). Appellant argues that,
because Officer Alcantar did not tell him that she was searching for narcotics after
she smelled marihuana, there was no evidence that he knew that there was an “in-
progress” investigation for which the marihuana would have been evidence.
      Appellant asserts that the holding in Pannell v. State controls in this case. In
Pannell, the court held that the defendant had to be “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.” 7 S.W.3d 222, 223 (Tex. App.—
Dallas 1999, pet. ref’d); see Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.—


      3
       Id. § 37.09(a)(1).


                                           3
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). We note
that 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 37.09(a)(1). 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.). The Fifth Court of Appeals has since recognized the rejection of its reasoning
in Pannell. Williams v. State, No. 05-16-00877-CR, 2017 WL 5150846, at *2 n.2
(Tex. App.—Dallas Nov. 7, 2017, pet. ref’d) (mem. op., not designated for
publication).   Nevertheless, even under Pannell or Lumpkin, the State adduced
sufficient evidence of Appellant’s mental state.
      Here, Appellant refused to spit out the marihuana and swallowed it after
Officer Alcantar asked him to spit it out, which indicated that he knew she was
investigating him for narcotics when he tampered with 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 cocaine
or otherwise allow its removal after being ordered to do so”); Barrow, 241 S.W.3d
at 923–24 (same). Additionally, because Officer Alcantar testified that the odor of
marihuana was strong, a rational factfinder could have inferred that Appellant knew
Officer Alcantar was investigating him for marihuana before he swallowed it.
Therefore, the State adduced sufficient evidence to show beyond a reasonable doubt
that Appellant, knowing that an investigation was in progress, tampered with the
evidence. We overrule Appellant’s sole issue.




                                         4
                                        III. This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           MIKE WILLSON
                                                           JUSTICE


July 12, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.,4




        4
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.


                                                      5
