
                           NO. 07-12-0049-CR
                           NO. 07-12-0050-CR

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL C

                           DECEMBER 17, 2012
                  ___________________________________

                         JESSE ANTONIO GAITAN,

                               Appellant

                                   V.

                          THE STATE OF TEXAS,

                                                 Appellee
                  ___________________________________

             FROM THE 271ST DISTRICT COURT OF WISE COUNTY;

         NOS. CR16105 & CR16106; HON. JOHN H. FOSTEL, PRESIDING
                   __________________________________

                                Opinion
                   __________________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
      Appellant, Jesse Antonio  Gaitan,  appeals  his  convictions  for
tampering with physical evidence  and  being  a  felon  who  unlawfully
possessed a firearm.  He contends that the  evidence  was  insufficient
to show that he attempted to conceal, destroy, or alter the  weapon  or
that he possessed it.  We affirm.


                               Background
      The weapon in question was a 45-caliber handgun the police  found
by a fence around midnight.  The officer who discovered the weapon  was
responding to a  dispatch  about  a  disturbance,  along  with  another
officer.   When  the  former  arrived,  he  noticed  appellant  discard
something metallic near a carport doorway.  At the time, appellant  was
being told but was refusing to stop.  Instead, he  was  walking  toward
the carport.  Various other people at the scene impeded  the  officer’s
search for the discarded item.  Nonetheless, he found the handgun.
      Appellant’s estranged wife testified that she had seen  appellant
with the same handgun earlier that month.  And, though  appellant  told
the  officers  that  he  was  merely  throwing  away  a  beer  can,  he
acknowledged having handled a gun on an earlier date.  The  weapon  was
determined to have been stolen.
      The evidence  that  appellant  was  seen  discarding  a  metallic
object through a doorway by which  he  passed,  the  discovery  of  the
object or handgun by the police in  the  vicinity  of  where  appellant
tossed the object, and appellant’s wife stating that  the  handgun  was
in appellant’s  possession  earlier  is  some  evidence  upon  which  a
rational  factfinder  could  conclude  beyond  reasonable  doubt   that
appellant possessed the weapon as alleged in the indictment.   Coupling
that with evidence of appellant’s status as a prior  felon  subject  to
prosecution for possessing a firearm, see Tex. Penal Code Ann. §  46.04
(West 2011) (describing the offense of a felon possessing  a  firearm),
his desire not to be found with the discarded object,  his  refusal  to
heed the officer’s directive to stop, and  his  discarding  the  object
into  the  night,  the  same  factfinder  could  also   deduce   beyond
reasonable  doubt  that  appellant  concealed  the  weapon   from   the
officers.  This is so given  that  the  Fort  Worth  Court  of  Appeals
construed “conceal” to mean "the act of removing from sight or  notice;
hiding." Rotenberry v. State,  245  S.W.3d  583,  589  (Tex.  App.–Fort
Worth 2007, pet. ref'd); accord  Lujan  v.  State,  No.  07-09-0036-CR,
2009 Tex. App. Lexis 7121, at *6 (Tex. App.–Amarillo Sept. 9, 2009,  no
pet.) (mem. op., not designated for publication) (defining  conceal  as
meaning “to prevent disclosure or recognition of” or “to place  out  of
sight”); see also Young v. State, No.  07-09-0229-CR,  2010  Tex.  App.
Lexis 9459,*3-4 (Tex. App.–Amarillo Nov. 30, 2010, no pet.) (mem.  op.,
not designated for publication) (defining conceal to mean “to  hide  or
to keep from  observation,  discovery  or  understanding”).   That  his
effort was ultimately unsuccessful matters little; the  factfinder  had
before it some evidence from which it could  legitimately  deduce  that
appellant was  “hiding”  what  he  had  from  the  officers  called  to
investigate the disturbance.[1]   Whether we would have  so  found  had
we been jurors also matters  little.   Our  task  under  the  pertinent
standard of review is to defer to what a factfinder could  legitimately
infer from the evidence.  See Laster v. State, 275 S.W.3d  512,  517-18
(Tex. Crim. App. 2009).   We do not, and must not, shed  our  robes  as
jurists to assume the garb of jurors or  supplant  what  the  law  says
with what we wish it said.[2]
      Accordingly, the  issues  are  overruled,  and  the  judgment  is
affirmed.

                                        Brian Quinn
                                        Chief Justice

Publish.



-----------------------
      [1]Unlike the circumstances in Thornton v. State, No. 07-11-0069-
CR, 2012 Tex. App. Lexis 6493  (Tex.  App.–Amarillo,  August  7,  2012,
pet. filed), we do not have an officer “repeatedly confirm[ing ] . .  .
that the object Appellant removed from his  pocket  .  .  .  was  never
concealed from him because it  never  left  his  sight.”   Id.  at  *8.
Rather, they liken to another case  cited  by  the  dissent,  Lujan  v.
State,  No.  07-09-0036-CR,   2009   Tex.   App.   Lexis   7121   (Tex.
App.–Amarillo September 9, 2009, no pet.).  There, the appellant  threw
a crack pipe into the night after spying the police. Id. at  *6-7.   He
did so because he thought he would be arrested had  the  officer  found
it on him.  Id.  We concluded that the timing and  motivation  for  the
gesture was  enough  to  allow  a  jury  to  legitimately  deduce  that
“appellant intended to  impair  the  pipe’s  availability  as  evidence
against him . . .  .”   Id.   This  was  so  despite  the  presence  of
evidence suggesting  that  the  officer  easily  found  the  pipe  upon
searching the area.  So, and contrary to the dissent’s point  of  view,
“dispossessing oneself of incriminating evidence”  may  indeed  satisfy
the actio malum prohibitum purportedly  laying  at  the  heart  of  the
criminal statute at issue.


      [2]Though  the  dissent  would  modify  the  judgment  to  remove
verbiage relating to the assessment of attorney’s fees, that was not  a
matter raised by appellant.  Nor is  it  jurisdictional.   So,  it  was
waived.

