Affirmed and Memorandum Opinion filed December 6, 2012.




                                            In The

                         Fourteenth Court of Appeals

                                     NO. 14-12-00341-CR

                          DANIELLE KEITH BURKS, Appellant

                                               V.

                             THE STATE OF TEXAS, Appellee


                          On Appeal from the 180th District Court
                                   Harris County, Texas
                              Trial Court Cause No. 1310030


                     MEMORANDUM                          OPINION


          Appellant Danielle Keith Burks appeals his conviction for tampering with
evidence on the ground that the evidence is insufficient to support a conviction. We
affirm.

          On June 16, 2011, Officer Greg Clark stopped a vehicle for a traffic violation at an
intersection in Houston, Harris County.             Officer Clark asked the driver for his
identification and proof of insurance and requested identification from the passenger,
who was later identified as appellant. Officer Clark noticed that both the driver and
appellant were nervous, evasive of his questions, and failed to make eye contact.
Because the area where the vehicle was stopped was well known for narcotics and
prostitution, Officer Clark asked the men to step out of the vehicle for further questions.

       When the men exited the vehicle, Officer Clark conducted a pat down to search
for weapons. After determining the driver and the passenger were not carrying weapons,
Officer Clark asked the driver for permission to search the vehicle for “anything illegal.”
The driver gave him permission, and the search revealed nothing illegal in the vehicle.
When he returned to where the driver and appellant were standing at the rear of the
vehicle, Officer Clark noticed appellant’s “Adam’s apple was moving up and down in a
very fast manner and his neck was straining as if, like, he was trying to swallow
something dry.” Officer Clark asked appellant what was in his mouth, but appellant did
not answer. When appellant spoke, his words were “unintelligible and garbled.” Officer
Clark determined appellant had been chewing on something and demanded that appellant
spit out whatever was in his mouth. Officer Clark tried to pry open appellant’s mouth to
determine what he was attempting to swallow. Eventually, appellant spit out a “wad of
plastic with some white powder in it.” Officer Clark field-tested the substance and it
tested positive for cocaine. At trial, a criminalist with the Houston Police Department,
confirmed that the powder in the bag was cocaine.

       Appellant and his family members caused a disturbance at the time Officer Clark
attempted to arrest appellant. After calling for back-up units, Officer Clark arrested
appellant and the driver. A back-up officer placed appellant’s sister in a patrol car
because she was impeding the investigation.         On cross-examination, Officer Clark
admitted he did not see appellant put the plastic baggie in his mouth. After appellant spit
the baggie out, it was on the ground for a minute to a minute and a half as Officer Clark
placed appellant in his squad car and back-up officers addressed issues with appellant’s
family members at the scene. Officer Clark testified that despite the disturbance created
by appellant’s family members, he observed the baggie during the arrest and it was the
same baggie appellant spit out of his mouth.

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       In a single issue, appellant contends the evidence is insufficient to support
appellant’s conviction for the offense of tampering with physical evidence as alleged in
the indictment. As alleged in the indictment, the elements of tampering with evidence are
that appellant (1) concealed the cocaine; (2) with intent to impair its availability as
evidence in an investigation; and (3) knowing that an investigation was in progress. See
Tex. Pen. Code Ann. § 37.09(a)(1).

       When reviewing sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences therefrom, whether any rational fact finder could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746
(Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We
may not substitute our judgment for that of the fact finder by re-evaluating the weight and
credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
Rather, we defer to the responsibility of the fact finder to fairly resolve conflicts in
testimony, weigh the evidence, and draw reasonable inferences from basic facts to
ultimate facts. Id.

       Appellant contends the evidence is insufficient to prove he knowingly concealed
cocaine with the intent to impair its availability as evidence in an investigation.
Appellant challenges the sufficiency of the evidence to show he knew an investigation
was in progress. Appellant was indicted for concealing a controlled substance knowing
“that an investigation was in progress” as opposed to merely pending. See Tex. Penal
Code Ann. § 37.09(a).

       An investigation for narcotics has been held not to be in progress when the officer
approached a vehicle after a traffic stop and observed the driver ingesting a white
substance. See Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.—Houston [1st Dist.]
2004, pet ref’d). In Lumpkin, the court held that at the time Lumpkin swallowed the
narcotics the only investigation in progress was one for a traffic stop. However, in this
case, the investigation had proceeded beyond one for a traffic violation at the time

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appellant attempted to swallow the substance he put in his mouth. Officer Clark had
patted down appellant and the driver for weapons and asked permission to search the
vehicle for “anything illegal.” Officer Clark demanded appellant spit out what was in his
mouth and attempted to pry open appellant’s mouth to determine what appellant was
attempting to swallow. A jury could rationally infer beyond a reasonable doubt that
appellant knew he was the subject of an investigation for drug possession at the time he
attempted to swallow the evidence. See Barrow v. State, 241 S.W.3d 919, 923–24 (Tex.
App.—Eastland 2007, pet. ref’d).

       Viewing all of the evidence in the light most favorable to the verdict, we find a
rational jury could have found the elements of the offense beyond a reasonable doubt.
Thus, the evidence was sufficient to convict appellant of tampering with evidence.
Appellant’s sole issue is overruled, and the judgment of the trial court is affirmed.


                                                  PER CURIAM



Panel consists of Justices Seymore, Boyce, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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