                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-14-00044-CR


                   QUINCY DWAYNE YARBROUGH, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 242nd District Court
                                   Hale County, Texas
            Trial Court No. B19404-1302, Honorable Edward Lee Self, Presiding

                                     May 13, 2015

                           MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Appellant, Quincy Dwayne Yarbrough, appeals his conviction for tampering with

physical evidence. Through a single issue, he contends that the evidence is insufficient

to support the conviction. We reverse.

      Background

      Officer Dustin Waters, with the Plainview Police Department, was working the

night shift when he received a radio dispatch directing him to follow a vehicle driven by

appellant. The report allegedly came from another officer who purportedly saw what he
described as a “hand-off” or drug transaction. Waters encountered appellant’s vehicle

and began to follow it. While doing so, he noticed that the license plate light was non-

functioning, decided to conduct a traffic stop, and activated his emergency lights.

Appellant pulled over.

      Upon approaching the detained vehicle and looking into the driver’s side window,

Waters observed “some green leafy crumbs . . . on [appellant’s] shirt and in his lap.”

That led him to ask appellant to step out of the car. Appellant then was arrested for

possessing marijuana, escorted to Water’s squad car, and placed in the back seat.

While in the back seat, appellant began “playing with his mouth a little bit with his

tongue,” according to Waters. At that point, Waters directed appellant to open his

mouth.   When appellant complied, the officer “observed a green leafy substance

chewed up in his mouth, in his teeth, and in the back of his throat” and opined that it

appeared to be marijuana. When asked what was in his mouth, appellant said he was

eating a hamburger and chewing on lettuce.

      The officer tried to collect and preserve the “crumbs” from appellant’s shirt.

However, he did not acquire or preserve any of the substance seen in appellant’s

mouth. When asked why, he said: “[b]ecause I didn't want to stick my hand in there, I

guess. . . I wasn't going to do it.” This led him to being asked at trial: “[d]id you not

think it was important to take, maybe, that evidence that you thought might be evidence

out of his mouth?” Water answered by stating that: “[y]eah, it probably would have been

important.” So too did the officer admit that all green leafy substances are “not always”

marijuana. The officer also acknowledged that he did not know if appellant actually

swallowed any marijuana, that he could have collected samples of the substance in



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appellant’s mouth, that he could not have collected samples of what was swallowed,

and that “the marijuana that he would have been able to ingest already” would have

been “destroyed” even though he did not know if any was ingested.

        The only other witness for the State, Officer Abalos, testified that he responded

as back up to Officer Waters, approached appellant’s vehicle, observed appellant open

his mouth for Waters, also saw a green, leafy substance in appellant’s mouth, and

believed the substance to be marijuana. When asked if he was familiar (due to his

experience) with the appearance and smell of marijuana, Abalos replied in the

affirmative. Abalos also described his search around the area. During that search, he

located marijuana between his squad car and that of Waters. He did not testify about

how the marijuana came to be there, though he did admit that he did not see appellant

“throw” it there.1     Like Waters, Abalos also opted to forego collecting, removing or

testing any of the substance seen in appellant’s mouth. So too did he acknowledge that

it would have been “important” to remove and test the substance and that he did not

know why that was not done.

        In turn, appellant testified at trial and said that 1) on the day of the arrest, he had

been with friends grilling hamburgers, 2) he left around 10:00 p.m., 3) the substance

found on his clothes was marijuana, 4) he did not “eat” any marijuana, 5) the marijuana

on his clothes came from him smoking marijuana sometime earlier, 6) he did not throw

any marijuana out of the vehicle, 7) he had eaten a hamburger with lettuce on it, 8) the

leafy substance in his mouth was lettuce, and 9) he had a prior felony conviction for

marijuana.

        1
            Indeed, no State’s witness testified about seeing appellant throw anything away. Nor does the
record indicate that appellant walked behind Officer Waters’ patrol car or had occasion to be within the
vicinity of where Officer Abalos found the marijuana.

                                                   3
       At trial, the jury was asked to determine whether appellant “knowing that an

offense had been committed, to wit: possession of marihuana, did intentionally or

knowingly destroy a suspected controlled substance, to wit: marihuana, with the intent

to impair its availability as evidence in any subsequent investigation or official

proceeding related to the offense . . . .” It found that he did.

       Authority

       Appellant contends that the evidence is insufficient to support his conviction

because no evidence illustrates that he destroyed anything or that the thing he

destroyed was marijuana. We sustain the issue.

       The applicable standard of review is most recently described in Murray v. State,

No. PD-1230-14, 2015 Tex. Crim. App. LEXIS 391 (Tex. Crim. App. April 15, 2015).

Under it, we must decide “‘whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” Id. at *3-4, quoting, Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (emphasis in

original). The standard burdens “the factfinder with resolving conflicts in the testimony,

weighing the evidence, and drawing reasonable inferences from basic facts.” Id. And,

the reviewing court must decide if “‘the necessary inferences are reasonable based

upon the combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.’” Id. at *4.

       Next, § 37.09 (d) of the Texas Penal Code states that: “[a] person commits an

offense if the person . . . [while] knowing that an offense has been committed, alters,

destroys, or conceals any record, document, or thing with intent to impair its verity,



                                              4
legibility, or availability as evidence in any subsequent investigation of or official

proceeding related to the offense.” TEX. PENAL CODE ANN. § 37.09(d) (West Supp.

2014). Furthermore, a thing is “‘destroyed,’” according to our Court of Criminal Appeals,

“when ‘ruined or rendered useless,’ rather than when its evidentiary value is lost or

diminished.” Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014), quoting,

Williams v. State, 270 S.W.3d 140, 145-46 (Tex. Crim. App. 2008). It is destroyed

“when it has lost its identity and is no longer recognizable.” Williams v. State, 270

S.W.3d at 146.

      Here, appellant was accused of and tried for “destroy[ing]” a “thing.” The thing in

question was “a suspected controlled substance, to wit, marijuana. . . .” Arguably, the

marijuana alluded to could be that allegedly seen in appellant’s mouth. Yet, that the

officers 1) testified to seeing it in appellant’s mouth, 2) described it as a green leafy

substance, 3) concluded it was marijuana, and 4) acknowledged that they had the ability

to collect or remove it from appellant’s mouth is testimony establishing that the

substance was quite identifiable.

      To reiterate the words of the Court of Criminal Appeals in Williams, a thing is

destroyed when it has lost its identity and is no longer recognizable. Id. The supposed

marijuana in appellant’s mouth did not lose its identity; nor was it unrecognizable. So,

its presence in appellant’s mouth and appellant’s alleged effort to chew it is not some

evidence upon which a rational factfinder could infer destruction, as alleged in the

indictment, incorporated into the jury charge, and required by statute.

      That the substance in appellant’s mouth could have been collected and analyzed

also creates another obstacle to conviction. Again, the “thing” appellant was accused of



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destroying was marijuana.          Yet, as admitted by the police officer, .14 ounces of

marijuana was recovered from appellant.2 It consisted of the crumbs taken from his

shirt and the two “buds” found on the street.3 The officer also acknowledged that the

quantum was “enough to charge somebody with possession of marijuana under two

ounces.”     To that quantum, the police could have added the substance found in

appellant’s mouth had they opted to gather it. So, in effect, what we have here is the

State disproving an element of the offense. That is, it proved that the thing allegedly

destroyed (i.e., marijuana) was not destroyed.

       To the extent that the State suggests the destroyed “controlled substance”

alluded to in both the indictment and jury charge consisted of what appellant allegedly

swallowed, we find the argument lacking as well. Officer Waters did testify that the

portion of the substance appellant swallowed was “destroyed.” Assuming arguendo that

appellant swallowed some of whatever was in his mouth,4 none of the officers testified

that they had any expertise in biology, the medical field, or any other field which would

have rendered them capable of testifying, in any legally probative manner, that the fluids

or acids or anything else found in a human gastrointestinal tract would have ruined or

made useless whatever may have been swallowed. Nor did any other witness, expert

or not, so testify.      Simply put, the officer’s comment about the substance being

“destroyed” when swallowed was and is a mere naked and unsupported conclusion; as


       2
         Whether the crumbs on appellant’s shirt and marijuana found in the street was actually
marijuana is conjecture. There is no evidence of record indicating that the substance was subjected to
testing.
       3
           Though the officer attributed to appellant the marijuana found on the street behind Water’s
patrol car, he failed to explain how and when appellant placed it there.
       4
          Officer Waters said “I don't know if he was able to swallow any” when asked if appellant was
able to swallow any crumbs found in his mouth.

                                                  6
such, it has no probative value. See Natural Gas Pipeline Co. v. Justiss, 397 S.W.3d

150, 157 (Tex. 2012) (recognizing that opinion testimony that is conclusory or

speculative is not relevant evidence since it does not tend to make the existence of a

material fact more or less probable); Dallas Railway Terminal Co. v. Gossett, 294

S.W.2d 377, 380-81 (Tex. 1956) (stating that “the naked and unsupported opinion or

conclusion of a witness does not constitute evidence of probative force and will not

support a jury finding even when admitted without objection”).

       Also deficient is the testimony by one officer that he could not collect the matter

from appellant’s stomach. While he may not have had the ability to do so, there is no

evidence that others (such as medical personnel) would have been unable to do so.

Indeed, the police often take suspects to a local hospital to capture evidence of

criminality. One need only think of blood draws taken from an individual suspected of

driving while under the influence of intoxicants to realize this. If an officer’s inability to

personally seize or secure the evidence in question is proof of “destruction,” then it can

be argued that one has destroyed the alcohol found in the bloodstream because the

officer cannot personally capture it. More importantly, the latter supposition would be

ridiculous. In other words, the inability of a policeman alone to collect some bit of

evidence is not alone proof that the evidence has been ruined or rendered useless

under the scenario before us.

       As for the argument that the jury could have “rationally inferred from the

circumstances that even if the marijuana survived the digestive processes of Appellant’s

body, it would have passed through the bowels of the Appellant, causing it to be

destroyed because it would be unsanitary and unusable,” it too is lacking. Admittedly, a



                                              7
person may not care to touch something that passed through one’s bowel and anus.

Yet, that does not mean the content of the excreted substance is beyond analysis.

Without accompanying testimony, such as that discussing the effect gastric activity

would have on what appellant may have eaten, the hypothesis that rendering a matter

“unsanitary” somehow rendered it useless or ruined is conclusory and speculative.

Indeed, we can readily think of instances where infants, children, or adults have

swallowed objects only to have them pass through their gastric system intact. In those

instances, the object may have been “unsanitary” when it exited the body, but it often

remained quite identifiable. Whether the substance appellant supposedly swallowed

would have remained identifiable is an exercise in conjecture. Whether it would have

been unidentifiable or rendered useless is also conjecture, given the record before us.

But, in either situation, we cannot say that eschewing the desire to touch it because of

where it had been is evidence that it is ruined or useless.

       In sum, no probative evidence appears of record upon which rational minds could

conclude or infer that appellant “did intentionally or knowingly destroy a suspected

controlled substance . . . .” Yet, our task has not ended.

       According to Rabb, we are now required to decide if acquittal is appropriate or

whether the judgment may be reformed to encompass a conviction on a lesser offense

included within the scope of the offense charged. Rabb v. State, 434 S.W.3d at 618.

Undertaking that analysis obligates us to address two questions.       As explained in

Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014):

              [A]fter a court of appeals has found the evidence insufficient to
       support an appellant's conviction for a greater-inclusive offense, in
       deciding whether to reform the judgment to reflect a conviction for a
       lesser-included offense, that court must answer two questions: 1) in the


                                             8
       course of convicting the appellant of the greater offense, must the jury
       have necessarily found every element necessary to convict the appellant
       for the lesser-included offense; and 2) conducting an evidentiary
       sufficiency analysis as though the appellant had been convicted of the
       lesser-included offense at trial, is there sufficient evidence to support a
       conviction for that offense? If the answer to either of these questions is
       no, the court of appeals is not authorized to reform the judgment. But if
       the answers to both are yes, the court is authorized--indeed required--to
       avoid the "unjust" result of an outright acquittal by reforming the judgment
       to reflect a conviction for the lesser-included offense.


Id. at 299-300. Both parties have briefed the issue and focused on the crime of attempt.

       According to statute, a person “commits an offense if, with specific intent to

commit an offense, he does an act amounting to more than mere preparation that tends

but fails to effect the commission of the offense intended.” TEX. PENAL CODE ANN. §

15.01(a) (West 2011). The supposed offense appellant intended to commit here was

that described above and involved the destruction of a thing 1) while knowing that an

offense has been committed and 2) with intent to impair its verity, legibility, or availability

as evidence in any subsequent investigation. It seems rather arguable that an attempt

to commit an offense under § 37.09(d) of the Penal Code can be a lesser-included

offense. Nonetheless, upon reviewing the record at bar, we found no evidence that

appellant tried to destroy the thing placed in his mouth with the intent to impair its verity,

legibility, or availability as evidence in any subsequent investigation.

       Admittedly, appellant had something in his mouth. Whether it was placed there

in effort to prevent its use in a subsequent investigation, however, is unknown. The

officers said nothing about when appellant first tried to eat the substance. Nor does the

record fill the void. Nor did the officers describe appellant engaging in some gesture

indicative of trying to destroy something upon first encountering him. It may be that he



                                              9
saw the officers and then began chewing. It may be that he ate the substance before

he became aware of the officer’s presence. It may be that the substance in his mouth

was marijuana. It may be that it was lettuce, as appellant so testified. Yet, when it was

placed in his mouth and what it actually was are topics about which we can only guess

in view of the deficient record at bar. And, without this or like information, an officer

merely finding the substance in appellant’s mouth does not permit a factfinder to

reasonably infer that it was placed there in effort to impair its availability in a subsequent

investigation.

       Again, the crime of attempt requires proof of a specific intent to commit an

offense, the offense here being a violation of § 37.09(d) of the Penal Code. If appellant

did not ingest or attempt to ingest the substance with the intent to render it unavailable

in a subsequent investigation, he did not attempt to violate § 37.09(d). Since there is no

evidence that he ingested the substance for that reason, we cannot say that the record

contains evidence establishing the crime of attempt to violate § 37.09(d). In short, we

cannot answer “yes” to both questions posed in Thornton and are barred from reforming

the judgment.

       Accordingly, we reverse the trial court's judgment of conviction and render a

judgment acquitting appellant.

                                                         Brian Quinn
                                                         Chief Justice



Do not publish.




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