                                  NO. 12-15-00102-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

DAVID CHARLES DAILEY,                            §      APPEAL FROM THE 217TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      ANGELINA COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Appellant, David Charles Dailey, appeals his conviction for the offense of tampering with
or fabricating physical evidence. He was sentenced to imprisonment for fifteen years. In two
issues, Appellant contends the trial court erred in overruling his motion for mistrial, and that the
evidence is insufficient to support his conviction for tampering with or fabricating physical
evidence. We affirm.


                                          BACKGROUND
       Appellant was the passenger in a vehicle stopped for a routine traffic violation by Texas
Highway Patrol Trooper Randy Pitts.         While Trooper Pitts talked to the driver, Brandon
Finchum, Trooper Brandon Boulware engaged in a conversation with Appellant.                Trooper
Boulware smelled the odor of an alcoholic beverage coming from inside the car and noticed what
he believed was an open container of an alcoholic drink in the vehicle. Boulware retrieved the
container and placed it on the bumper of the stopped vehicle. He asked Appellant to get out of
the vehicle so that he and Pitts could search it. During a pat down of Appellant, Trooper
Boulware observed a clear plastic baggie in the front left pocket of Appellant’s pants that
Boulware believed contained more than a gram of a controlled substance.             Boulware told
Appellant that he was under arrest for possession of methamphetamines, placed Appellant in
handcuffs, and handed the baggie containing the controlled substance to Trooper Pitts. Trooper
Boulware then placed Appellant in the front seat of the patrol car, and joined Pitts in the search
of Finchum’s vehicle.
       Trooper Pitts placed the bag of methamphetamine in the middle of the center console
between the driver and passenger seats in his patrol car, and adjusted the patrol car’s video
camera so that it would record Appellant’s actions while he and Boulware searched the detained
vehicle.
       When Trooper Pitts returned to the patrol car, the sealed bag of methamphetamine was
not on the console where he placed it. Instead, it lay between the passenger seat and the
passenger door, its contents strewn on the patrol car carpet and side pocket of the passenger door.
Using his hands and a manila envelope, Trooper Pitts retrieved what was possible from the rug
of the patrol car and placed it back in the baggie. Pitts believed most of the methamphetamine
had been lost. The DPS crime laboratory determined that the baggie with the amount recovered
contained 0.07 grams of crystal methamphetamine.
       The patrol car video shows Appellant repeatedly attempting to blow the baggie or its
contents off the console.     The video shows multiple attempts by Appellant, despite being
handcuffed, to bring his arms to his left side, toward the console, in order to get the baggie.
       Trooper Pitts testified, and the video confirmed, that no one had access to the interior of
the patrol car during the time the troopers searched the stopped vehicle. The windows were
rolled up and the doors were closed.


                                   EVIDENTIARY SUFFICIENCY
       In his second issue, Appellant challenges the sufficiency of the evidence to support his
conviction of tampering with or fabricating physical evidence.
Standard of Review and Applicable Law
       Appellate review of the sufficiency of the evidence requires that all of the evidence
should be viewed in the light most favorable to the verdict in order to determine whether any
rational trier of fact could have found all of the essential elements of the offense beyond a
reasonable doubt.       Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010).
Circumstantial evidence is as probative as direct evidence in establishing guilt, and




                                                  2
circumstantial evidence alone can be sufficient to establish guilt. Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
       A person commits an offense if the person knowingly or intentionally possesses a
controlled substance listed in Penalty Group 1, unless the person obtained the substance directly
from or under a valid prescription or order of a practitioner acting in the course of professional
practice.   TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010).                 If the amount
possessed is one gram or more but less than four grams, the offense is a third degree felony.
TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010). Methamphetamine is included in
Penalty Group 1. TEX. HEALTH & SAFETY CODE ANN. § 481.102(6) (West 2010).
       A person commits an offense if, knowing that an investigation or official proceeding is
pending or in progress, he alters, destroys, or conceals any record, document, or thing with the
intent to impair its verity, legibility, or availability as evidence in the investigation or official
proceeding. TEX. PENAL CODE ANN. § 37.09(a) (West Supp. 2015). As charged in this case, an
offense under this subsection is a third degree felony. TEX. PENAL CODE ANN. § 37.09(c) (West
Supp. 2015).
Discussion
       Trooper Boulware estimated that the baggie he took from Appellant contained a gram or
more of the controlled substance. However, the weight of the substance seized by Boulware was
never accurately determined. Trooper Pitts managed to retrieve 0.07 grams of the substance
from the patrol car carpet. Appellant contends that “without an idea of the exact weight” of the
substance when Trooper Boulware seized it, a conclusion that he altered, destroyed, or concealed
the evidence would rest on mere speculation.
       Appellant also argues that, although the trial testimony shows the methamphetamine was
scattered on the floor of the patrol car, it does not establish that it was altered, destroyed, or
concealed. All the contents of the baggie remained in the patrol car. The unaltered substance lay
scattered about on or in the carpet of the car. Appellant argues that even if Trooper Pitts did not
succeed in recapturing all of the methamphetamine from the patrol car rug, it remained in the
patrol car available for retrieval using a less primitive method than Trooper Pitts employed.
       The Austin court of appeals addressed this argument in Dooley v. State, 133 S.W.3d 374
(Tex. App.—Austin 2004, pet. ref’d). In Dooley, the appellant had crumbled a rock of cocaine in
his hand while the police were attempting to arrest him. After subduing the appellant, the police



                                                 3
were able to recover only two milligrams of powder cocaine from the appellant’s fingers and
from the bathtub where he was sitting. Id. at 376. In Dooley, as in our case, the State argued
that the appellant’s actions reduced the evidentiary value of the cocaine because he could not be
prosecuted for the actual weight of the pinto-bean-sized rock of cocaine he possessed. As in the
instant case, the appellant asserted that there was no evidence that his action reduced the weight
of the rock he possessed when arrested. Id. at 379. In rejecting the appellant’s argument, the
court of appeals said, “[A]ppellant’s argument proves the State’s point. Because of appellant’s
actions, the State was unable to determine the actual weight of the cocaine he possessed, hence
reducing the evidentiary value of the cocaine.” Id. The court of appeals held that the trace
amount of powdered cocaine recovered had less evidentiary value than the whole rock and
therefore the jury could rationally find beyond a reasonable doubt that the appellant destroyed
the rock of cocaine. Id. at 379.
       In the instant case, Trooper Pitts recovered as much of the methamphetamine as he could
using the most practical means available to him. In Pitts’s opinion, most of what had been in the
baggie lay concealed and unrecoverable among the carpet fibers. When Appellant scattered the
powdered substance among the carpet fibers on the floor, he rendered most of what had been in
the baggie unrecoverable. He destroyed the evidentiary value of the unrecoverable portion.
Appellant’s action also destroyed that portion of the methamphetamine by rendering it useless
for the purpose intended by its manufacturer and prospective user. See Rabb v. State, 434
S.W.3d 613, 616 (Tex. Crim. App. 2014); Williams v. State, 270 S.W.3d 140, 145-46 (Tex.
Crim. App. 2008).
       Appellant does not deny that he scattered the methamphetamine on the floor of the patrol
car. Nor does he deny that a criminal investigation was in progress at the time.
       There is ample evidence for a rational jury to find that Appellant concealed or destroyed
the methamphetamine with the intent to impair its availability as evidence in a criminal
investigation. Appellant’s second issue is overruled.


                                      DENIAL OF MISTRIAL
       In his first issue, Appellant maintains that the trial court reversibly erred in denying his
motion for mistrial.




                                                4
Standard of Review and Applicable Law
       A trial court’s denial of a motion for mistrial is reviewed under an abuse of discretion
standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
       Mistrial is the appropriate remedy when error is so prejudicial that expenditure of further
time and expense would be futile. Id. at 567. It is a remedy intended for extreme circumstances,
when prejudice is incurable and less drastic alternatives have been explored. Ocon v. State, 284
S.W.3d 880, 884 (Tex. Crim. App. 2009). Mistrial is required only when the impropriety is
clearly calculated to inflame the minds of the jurors and is of such a character as to suggest the
impossibility of withdrawing the impression produced. Hinojosa v. State, 4 S.W.3d 240, 253
(Tex. Crim. App. 1999). When objectionable testimony is elicited, inadvertently or deliberately,
an appellate court will ordinarily presume the jury will follow the trial court’s curative
instruction to disregard the objectionable testimony. Ladd, 3 S.W.3d at 567. In determining
whether a prejudicial event was so harmful as to warrant reversal on appeal, the court considers
(1) the severity of the misconduct, (2) the curative measures adopted to cure the misconduct, and
(3) the certainty of conviction absent the misconduct. See Hawkins v. State, 135 S.W.3d 72, 77
(Tex. Crim. App. 2004).
Discussion
       The patrol car video was shown to the jury. The video showed the stop, Appellant’s
arrest, his attempts to reach the baggie and blow its contents around the patrol car, and a
conversation between Appellant and Trooper Pitts before Pitts placed Appellant in the back of
the patrol car. The portion of the recording that showed Appellant’s conversation with Pitts was
muted so the jury could not hear it, because Appellant had not received a Miranda warning at the
time he spoke to Pitts. In his direct examination of Trooper Pitts, the prosecutor went to great
lengths in explaining to Pitts why he could not testify to what Appellant told him in that
conversation.


       [Prosecutor]: All right. And we reviewed this video and we looked at this video. Once you have
       placed him under arrest, do you remember if anybody Mirandized him or what they call 3822, read
       him his warnings?

       [Trooper Pitts]: I didn’t, no, sir.

       [Prosecutor]: Okay. And then, speaking of, I don’t think Trooper Boulware [read him his Miranda
       warning], I don’t see it in the video. So do you understand that might’ve been a mistake? To
       continue to talk to a Defendant, they have to be Mirandized, correct?



                                                     5
       [Trooper Pitts]: Correct, they do.

       [Prosecutor]: Okay. For that to be admissible in a courtroom, anything they said that would be
       used against them, they have to have that warning, correct?

       [Trooper Pitts]: Correct.

       [Prosecutor]: In this case it was a simple mistake. You thought that maybe [Trooper] Boulware
       had done it or, a lot of things are happening during this period of time?

       [Trooper Pitts]: Correct.

       [Prosecutor]: So at this point in time, I’m going to instruct you not to say any conversation that
       you had with the Defendant, okay. There will be the video playing. You can describe what you
       saw, what you felt, what your investigation led you to believe, but nothing in regards to what you
       asked the Defendant or anything the Defendant said to you. Does that make sense?

       [Trooper Pitts]: Yes, sir.


       Later in Pitts’s examination, the prosecutor asked him to explain how the video showed
Appellant blowing the methamphetamine off the console sending the methamphetamine around
the patrol car.     Then the prosecutor asked him, “How do you know that he [Appellant]
intentionally or knowingly, based on your investigation, altered, destroyed, or tried to conceal
the methamphetamine?” The trial court overruled Appellant’s objection to the question. Despite
the prosecutor’s careful clarification of why Pitts could not testify to what Appellant told him,
and Pitts’s assurance that he knew and understood the law, in response to the prosecutor’s
question, Pitts stated, “Mr. Dailey later on admitted to me . . .” Before Trooper Pitts could finish
his sentence, Appellant objected to the answer. The trial court sustained Appellant’s objection
and instructed the jury, “I’m going to instruct the jury to disregard any conversation that the
trooper had with Mr. Dailey other than what has been already played on the video.” The trial
court denied Appellant’s subsequent motion for mistrial.
       The State attempts to minimize the severity of the damage done by a flagrant violation of
Miranda by pointing out that Appellant’s objection prevented Trooper Pitts from saying what
Appellant admitted. However, the question’s phrasing and the trooper’s answer leave little room
for any inference to be drawn from Pitts’s response other than that Appellant had confessed to
the crime charged. The prosecutor did not deliberately elicit the trooper’s answer. He appears to
have tried carefully to avoid it. But it was just such an abuse that Miranda sought to prevent.
Even if inadvertent, Pitts’s Miranda Rule violation was egregious.




                                                       6
         Ordinarily, we must presume that the trial judge’s instruction cured error. However, it is
extremely doubtful that the trial judge’s instruction could entirely foreclose the jurors’
consideration of Appellant’s apparent confession. However, this is not a close case.
         The evidence against Appellant was overwhelming and uncontradicted.                            Absent the
misconduct, Appellant’s conviction was almost certain.                     Reversal is not warranted.             See
Hawkins, 135 S.W.3d at 77. Appellant’s first issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s two issues, we affirm the trial court’s judgment.

                                                                               BILL BASS
                                                                                Justice

Opinion delivered April 29, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                             (DO NOT PUBLISH)




                                                          7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                            APRIL 29, 2016


                                          NO. 12-15-00102-CR


                                    DAVID CHARLES DAILEY,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 217th District Court
                        of Angelina County, Texas (Tr.Ct.No. 2014-0700)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Bill Bass, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
