                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00504-CR


SHEILA MARIE CARNLEY                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                          STATE


                                     ----------

          FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY

                                     ----------

                                   OPINION
                                     ----------

                                 I. Introduction

      Appellant Sheila Marie Carnley appeals her conviction for the felony

offense of tampering with physical evidence. See Tex. Penal Code Ann. § 37.09

(West Supp. 2011). Following a bench trial, the trial court found Appellant guilty

and sentenced her to fifteen years’ confinement.1        In two issues, Appellant



      1
       Appellant pleaded true to the repeat offender allegation in the indictment.
contends that the trial court erred by denying her motion for directed verdict and

that the evidence is insufficient to support her conviction. We affirm.

                                II. Trial Testimony

      Officer William Allred testified that he was working for the Graham Police

Department on the night of February 24, 2009, and that he was operating a radar

unit and determined that a 2003 Pontiac vehicle was being driven fifty-one miles

per hour on a street with a thirty-mile-per-hour speed limit. Officer Allred testified

that Michael Bunting was driving the Pontiac at the time and that Appellant and

an unidentified juvenile were passengers in the vehicle.

      Officer Allred attempted to initiate a traffic stop, but Bunting did not stop

the vehicle.   In fact, Bunting drove the Pontiac through town at high speed,

running two different stop signs and making several turns. Bunting eventually

exited the Pontiac and fled on foot. When he exited, Bunting left the Pontiac in

gear, and it rolled forward and ran into a mailbox or curb. Officer Allred testified

that the Pontiac was evidence of a crime and that the area where Bunting left the

Pontiac was a crime scene.

      Officer Allred testified that he initially left his patrol car and pursued

Bunting on foot but that he soon returned to his patrol car and drove it closer to

the place where Bunting had run. 2 Backup officers arrived shortly thereafter, and




      2
       Bunting was later arrested for evading arrest or detention with a vehicle.


                                          2
Officer Allred asked Young County Sheriff’s Deputy Shane Shockley to return to

the Pontiac and secure the crime scene.

      Deputy Shockley testified that he saw the Pontiac being driven away

before he arrived at the place where Bunting had abandoned it.              Deputy

Shockley pursued the Pontiac, confirmed that the license plate matched that

given to him by Officer Allred, and conducted a traffic stop of the Pontiac.

Deputy Shockley identified Appellant in open court as the person driving the

Pontiac when he stopped it.

      Deputy Shockley testified that he detained Appellant and the juvenile until

Officer Allred arrived and continued his investigation.        While they waited,

Appellant told Deputy Shockley that “a guy named Adrian” had been driving the

Pontiac and that she did not know anything about the man. Deputy Shockley

also testified that he helped search the Pontiac, that there were no drugs in it,

that he did not recall Appellant having any drugs on her person, but that

Bunting’s wallet was inside Appellant’s purse.

      Officer Allred testified that he arrested Appellant for tampering with

physical evidence because she impaired the availability of the Pontiac vehicle by

driving it away from the crime scene. Officer Allred also testified that, based on

his training, experience, and investigation of this case, he believed Appellant

knew there was an investigation in progress and intentionally drove the Pontiac

away from the crime scene with the intent of impairing its availability as evidence.




                                         3
He further testified that he would not have charged Appellant with tampering had

she only moved the Pontiac a short distance for safety reasons.

      On cross-examination, Officer Allred agreed that he did not at any time tell

Appellant not to move the Pontiac.3       He also agreed that Deputy Shockley

stopped Appellant less than a mile from where Bunting initially exited the Pontiac,

that to his knowledge the Pontiac and its contents had not changed, and that the

“thrust of the charge” against Appellant was that she had moved the car.

      Appellant admitted during her testimony that she drove the Pontiac after

Bunting had fled on foot, but she testified that no one told her not to move it. She

testified that she moved the vehicle for safety reasons, saying that Bunting had

left the Pontiac in drive, that the vehicle was moving, and that the door was open.

Appellant testified that she believed she could move the car and that she

intended to move the car to an area “out of the fire zone,” which she described as

an area where there were no other cars on the street. Appellant explained, “I

was very freaked out by the whole situation and there [were] police lights

everywhere and I was scared . . . for my safety.”

      Appellant testified that she would have stopped the Pontiac even if Deputy

Shockley had not conducted the traffic stop. She testified that she was not trying

to escape and that she would not have moved the car had she been told not to.

However, Appellant admitted knowing that Bunting had been speeding while

      3
       The other officers who testified also confirmed that they did not instruct
Appellant not to move the vehicle.


                                         4
driving the Pontiac and that he was attempting to flee the police on foot.

Appellant also admitted that she knew when Bunting exited the Pontiac that it

was evidence, that the area where Bunting exited the Pontiac was a crime scene,

that the officer wanted the evidence to stay at the crime scene, and that she

moved the Pontiac despite that knowledge.

                             III. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether 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, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010). The trier of fact is the sole judge of the weight and

credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West

1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.

denied, 129 S. Ct. 2075 (2009).          Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. Isassi, 330 S.W.3d at 638; Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007). In determining the sufficiency of the evidence to


                                         5
show an appellant’s intent, and faced with a record that supports conflicting

inferences, we “must presume—even if it does not affirmatively appear in the

record—that the trier of fact resolved any such conflict in favor of the prosecution,

and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex.

Crim. App. 1991).

                                  IV. Discussion

      Appellant raises two issues, both of which relate to the sufficiency of the

evidence. Her first issue alleges that the trial court erred by denying her motion

for directed verdict, and her second contends that the evidence is insufficient to

support her conviction.    Because a challenge to the denial of a motion for

directed verdict is actually a challenge to the sufficiency of the evidence, we

address Appellant’s two issues together.4 Canales v. State, 98 S.W.3d 690, 693

(Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003); McCown v. State, 192

S.W.3d 158, 160 (Tex. App.—Fort Worth 2006, pet. ref=d).




      4
        We also note that a motion for directed verdict is not procedurally correct
in a bench trial and that a motion for judgment of acquittal would be more
appropriate. See State v. Lewallen, 927 S.W.2d 737, 739 n.2 (Tex. App.—Fort
Worth 1996, no pet.) (citations omitted); see also Davis v. State, No. 05-95-
01652-CR, 1997 WL 214792, at *4 n.3 (Tex. App.—Dallas May 1, 1997, pet.
ref’d) (not designated for publication). However, we address Appellant’s first
issue on its merits because it is clear from the context of the record that the trial
court understood her counsel’s motion once the State rested.


                                         6
A. Applicable Law

      As stated by the court of criminal appeals, the offense of tampering with

physical evidence under penal code section 37.09(a)(1)5 has three elements:

“(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

intent to impair its verity, legibility, or availability as evidence in the investigation

or official proceeding.” Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim. App.

2008) (citing Tex. Penal Code Ann. § 37.09(a)(1)). Explaining the two culpable

mental states involved with that offense, the court of criminal appeals has also

explained as follows:

             The three elements of section 37.09(a)(1) include “two
      different culpable mental states”—knowledge and intent.         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

      5
        Neither party mentions that the language used in the indictment clearly
refers to penal code section 37.09(a)(1) (tampering with evidence with
knowledge that an investigation is in progress) while the trial court’s judgment
refers to penal code section 37.09(d)(1) (tampering with evidence with
knowledge that a crime has been committed). Compare Tex. Penal Code Ann. §
37.09(a)(1), with id. § 37.09(d)(1). Both offenses, as applicable here, are third
degree felonies, see id. § 37.09(c), and the other material elements of each
crime are the same. See id. § 37.09(a)(1), (d)(1). Because the language in the
charging paragraph of the indictment clearly refers to an offense under section
37.09(a)(1), we analyze the sufficiency of the evidence under that section rather
than under section 37.09(d)(1). We also reform the trial court’s judgment to
reflect that the applicable statute is penal code section 37.09(a)(1). See Rhoten
v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.); see also
Blavier v. State, No. 06-11-00147, 2011 WL 6288046, at *2 (Tex. App.—
Texarkana Dec. 15, 2011, no pet.) (mem. op., not designated for publication)
(reforming judgment to reflect plea of not true instead of plea of true).


                                           7
      respect . . . to circumstances surrounding his conduct when he is
      aware . . . that the circumstances exist.” 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.”

Id. at 142–43 (quoting Stewart v. State, 240 S.W.3d 872, 874 (Tex. Crim. App.

2007), and Tex. Penal Code Ann. § 6.03(a), (b) (West 2011)).

B. Analysis

      The indictment alleged that Appellant, knowing that an investigation was in

progress concerning another person’s evading arrest or detention with a vehicle,

“intentionally or knowingly alter[ed] the vehicle involved, to wit: by moving the

vehicle the other person had been driving, with intent to impair the said vehicle’s

availability as evidence in the investigation.”6

      Appellant first argues that there is no evidence that she intentionally and

knowingly altered the physical evidence in the case because she believed “it was

safer to move the car from the position [where] Bunting left it” and because “no

law enforcement officer told her not to move the car.” While there is testimony

that Appellant intended to move the Pontiac to a safer location and that no one

told her not to move it, there is also testimony from Appellant herself that she

knew when Bunting exited the Pontiac that it was evidence, that the area where

Bunting exited the Pontiac was a crime scene, that the officer wanted the


      6
       The parties each assume that Appellant altered the Pontiac by moving it.
Because it is not an issue in this appeal, we express no opinion as to whether
Appellant’s movement of the Pontiac constituted an alteration as required by
penal code section 37.09(a)(1). See Tex. R. App. P. 47.1, 47.4.


                                           8
evidence to stay at the crime scene, and that she moved the Pontiac anyway. In

addition, there is evidence that Appellant did not voluntarily stop the Pontiac, that

Deputy Shockley had to make a traffic stop, and that Appellant lied to Deputy

Shockley about Bunting’s identity. Moreover, the video recording from Officer

Allred’s patrol car at least partially contradicts Appellant’s testimony that she

needed to move the Pontiac for safety reasons because only one car drove past

the Pontiac before Appellant moved it. Thus, there is sufficient evidence that

Appellant intentionally and knowingly altered the Pontiac by moving it, and we

overrule this portion of Appellant’s first issue.

      Appellant also contends that the evidence is insufficient to support her

conviction because her “movement of the car did not impair the car’s ‘verity,

legibility, or availability’ in such a manner that anything of evidentiary value was

diminished in any subsequent investigation.”         In doing so, Appellant cites

Hollingsworth v. State, 15 S.W.3d 586, 594–95 (Tex. App.—Austin 2000, no

pet.); Pannell v. State, 7 S.W.3d 222, 223–24 (Tex. App.—Dallas 1999, pet.

ref’d); and Spector v. State, 746 S.W.2d 945, 945–46 (Tex. App.—Austin 1988,

pet. ref’d).   However, each case is distinguishable.        In Hollingsworth, the

defendant was charged only with concealing physical evidence, and the court

held that the defendant did not conceal evidence by carrying it in his mouth

because crack cocaine is commonly carried in a person’s mouth and because

there was no evidence that the defendant put it in his mouth to hide it from the

police. See 15 S.W.3d at 594–95. In Spector, the defendant was charged only


                                           9
with destroying physical evidence, and the court held that tearing the marijuana

cigarette into two pieces did not destroy it. See 746 S.W.2d at 945–46. And

Pannell is inapplicable because it addressed the defendant’s knowledge that the

thing 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 at

223. This case involves the alteration of physical evidence, not destruction or

concealment, and there is no dispute concerning Appellant’s knowledge that the

Pontiac was evidence involved in the ongoing investigation into Bunting’s

evading arrest or detention with a vehicle. Thus, Appellant’s cases do not apply.

      Appellant also argues that the Pontiac itself had no “intrinsic evidentiary

value” because Officer Allred’s testimony would be sufficient to convict Bunting,

meaning Appellant could not have impaired the Pontiac’s verity, legibility, or

availability as evidence since the State did not need the Pontiac itself to convict

Bunting of evading arrest or detention with a vehicle. But Appellant’s argument

attempts to add an additional element to her crime. As alleged in the indictment,

the State had to prove that Appellant intentionally or knowingly moved the

Pontiac with the intent to impair its availability as evidence in the investigation of

Bunting’s evading arrest or detention with a vehicle.         The question is thus

whether Appellant intended to impair the Pontiac’s availability as evidence by

moving it, not whether she actually impaired its availability as evidence. See

Williams, 270 S.W.3d at 142 (listing elements of crime under penal code section

37.09(a)(1)); Stewart, 240 S.W.3d at 874 (stating that a “person acts


                                         10
intentionally, or with intent, [when] it is his conscious objective or desire to . . .

cause the result”) (quoting Tex. Penal Code Ann. § 6.03(a)); see also Lewis v.

State, 56 S.W.3d 617, 625 (Tex. App.—Texarkana 2001, no pet.) (stating that

evidence need not be made useless to investigation and that it is sufficient that

defendant intended to impair its usefulness).

      In that regard, there is evidence that Appellant knew the Pontiac was

evidence, that she moved it anyway, that she did not stop driving it until Deputy

Shockley conducted a traffic stop, and that she lied to Deputy Shockley about

Bunting’s identity (suggesting that she was trying to help Bunting evade arrest).

In addition, the video recording from Officer Allred’s patrol car contradicts

Appellant’s testimony about her concern for her safety. Moreover, Officer Allred

testified without objection that Appellant intentionally drove the Pontiac away

from the crime scene with the intent of impairing its availability as evidence.

Thus, there is sufficient evidence from which a rational trier of fact could have

found beyond a reasonable doubt that Appellant, by intentionally or knowingly

moving the Pontiac, intended to impair its availability as evidence in the

investigation into Bunting’s evading arrest or detention with a vehicle.         See

Williams, 270 S.W.3d at 142; Stewart, 240 S.W.3d at 874; see also Matson, 819

S.W.2d at 846 (addressing standard of review on issues of intent).

      Applying the appropriate standard of review, we hold that the evidence is

sufficient to support Appellant’s conviction as charged in the indictment. See




                                         11
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638; see also

Williams, 270 S.W.3d at 142. We therefore overrule Appellant’s two issues.

                                V. Conclusion

      Having overruled each of Appellant’s two issues, we affirm the trial court’s

judgment.



                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: April 26, 2012




                                       12
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-10-00504-CR


SHEILA MARIE CARNLEY                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE

                                      ----------

          FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY

                                      ----------

                            DISSENTING OPINION

                                      ----------

      I must respectfully dissent from the majority opinion because, based on the

reasoning of the Texas Court of Criminal Appeals in Stewart v. State,1 the

evidence is insufficient to support Appellant’s conviction.

      The underlying offense was evading arrest or detention in an automobile.

Appellant did not hide the automobile or change it in any way. The police were

able to thoroughly search the automobile to see if any additional offenses were


      1
       240 S.W.3d 872, 873–74 (Tex. Crim. App. 2007).
being committed.       The automobile was not offered into evidence during any

official proceeding.

      As the Texas Court of Criminal Appeals explained in Stewart, a marihuana

possession case in which the defendant police officer gave a bud of marihuana

to the suspect, thinking she would become a valuable informant,

             A person commits the offense of tampering with evidence if,
      knowing that an investigation or official proceeding is pending or in
      progress, he . . . alters, destroys, or conceals any record, document
      or thing with intent to impair its verity, legibility, or availability as
      evidence in the investigation or official proceeding. “Intent” and
      “knowledge” are two different culpable mental states. The tampering
      with evidence statute requires intent as to a particular result, namely,
      impairing a thing’s availability as evidence.              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.
      By contrast: A person acts knowingly, or with knowledge, with
      respect to a result of his conduct when he is aware that his conduct
      is reasonably certain to cause the result.

             It is not enough that appellant knew that his action would
      impair the availability of the marihuana as evidence. He must have
      intended to impair its availability. That is, impairing the marihuana’s
      availability as evidence must have been appellant’s conscious
      objective or desire. The court of appeals erred in analyzing the
      sufficiency of the evidence for the culpable mental state of
      knowledge when the statute proscribes the higher culpable mental
      state of intent.

             Moreover, the evidence appears to be legally insufficient to
      show that appellant had the conscious objective or desire to impair
      the availability of the marihuana as evidence.           The missing
      marihuana bud would not have changed the category of the offense,
      and the remaining marihuana was certainly enough to convict
      Lavender, if the State was interested in pursuing a prosecution.
      Indeed, appellant’s conduct appears to have been motivated by the
      belief that Lavender would escape prosecution by becoming an
      informant, and as a result, the entire quantity of marihuana would be
      destroyed anyway. That does not mean appellant did nothing


                                           2
      wrong. At the very least, he appears to have committed the Class B
      misdemeanor offense of delivery of marihuana. But that was not the
      offense he was charged with.2

      Similarly, in the case now before this court, moving the car would not have

changed anything about the evading-in-an-automobile offense.         No one told

Appellant not to move the automobile.          No one testified that Appellant did

anything that would have affected the State’s ability to prosecute the underlying

offense. There is no evidence of any attempt to hide the automobile or to change

it in any way. There was no testimony of any need to search the automobile in

order to prove the offense of evading arrest or detention in an automobile.

Automobiles are not brought to court and offered into evidence in evading-in-an-

automobile trials.

      Nothing Appellant did could have affected the State’s ability to prosecute

the case. Nor is there any evidence that she intended to affect the State’s ability

to prosecute the case or that she had any knowledge that moving the car could

affect the State’s ability to prosecute the case.

      I therefore must respectfully dissent.



                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PUBLISH

DELIVERED: April 26, 2012

      2
       Id. (internal citations and quotation marks omitted).


                                          3
