             NUMBERS 13-07-00591-CR and 13-07-00592-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


CHRISTOPHER JAMES GREGORY,                                                   Appellant,

                                            v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 24th District Court
                          of Victoria County, Texas


                         MEMORANDUM OPINION

                Before Justices Yañez, Rodriguez, and Vela
                Memorandum Opinion by Justice Rodriguez

       Appellant, Christopher James Gregory, challenges the trial court's revocation of

community supervision and adjudication of guilt. By one issue, appellant contends that the

evidence is insufficient to support the trial court's finding that he violated the terms of

community supervision. We affirm.
                                        I. Procedural Background

        In cause number 05-1-21, 507-A, appellant pleaded guilty to the offense of credit

card abuse, and the trial court sentenced him to five years of community supervision. See

TEX . PENAL CODE ANN . § 32.21 (Vernon Supp. 2007). In cause number 05-1-21, 506-A,

appellant pleaded guilty to the offense of retaliation, and the trial court deferred

adjudication for five years. See TEX . PENAL CODE ANN . § 36.06 (Vernon Supp. 2007).1 The

State filed a motion to revoke community supervision and a motion to adjudicate guilt,

alleging that appellant violated condition number 1 of his community supervision, by

committing the offense of tampering with physical evidence.2 See TEX . CODE CRIM . PROC .

ANN . art. 42.12 §§ 5(b), 21 (Vernon Supp. 2007); TEX . PENAL CODE ANN . § 37.09(a)(1)

(Vernon Supp. 2007). After appellant pleaded "not true," the trial court found appellant

violated condition 1, revoked his community supervision for credit card abuse, and

adjudicated him guilty of retaliation. The trial court sentenced appellant to two years'

confinement in state jail and a $1,000 fine for credit card abuse and six years' confinement

in the Institutional Division of the Texas Department of Criminal Justice and a $1,000 fine

for retaliation. Appellant filed an appeal challenging the sufficiency of the evidence

supporting the trial court's finding that he violated a condition of community supervision.3


        1
          Because the State produced the sam e evidence to prove that appellant violated a term and condition
of his com m unity supervision and adjudication of guilt at one hearing, and appellant challenges the sufficiency
of that evidence, we address both causes in the sam e opinion.

        2
          Under condition num ber 1, appellant was not to "com m it any offense against the laws of this State
or any other State or of the United States of Am erica."

        3
            An am endm ent to article 42.12 section 5(b) in 2007 rem oved the lim itation on a defendant's ability
to appeal an adjudication of guilt. Drugan v. State, 240 S.W .3d 875, 878 (Tex. Crim . App. 2007). The
am endm ent now "perm its an appeal of a court's decision to proceed to an adjudication of guilt." Id.; T EX .
C OD E C R IM . P R O C . A N N . art. 42.12 § 5(b) (Vernon Supp 2007). The act am ending section 5(b) provides:

        Subsection (b), Section 5, Article 42.12, Code of Crim inal Procedure, as am ended by this
                                                        2
                              II. Standard of Review and Applicable Law

         When reviewing a trial court's revocation of community supervision, we apply an

abuse of discretion standard of review. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.

App. 2006); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983); McDonald v.

State, 608 S.W.2d 192, 199 (Tex. Crim. App. 1980). We review the adjudication of guilt

in the same manner as the revocation of regular community supervision. See TEX . CODE

CRIM . PROC . ANN . art. 42.12 § 5(b) (Vernon Supp. 2007) (providing that an appellate court

reviews the determination of adjudication of guilt in the same manner as it reviews a

revocation hearing conducted when the defendant has violated community supervision).

We examine the evidence in the light most favorable to the trial court's order revoking

community supervision. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981);

Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979).

         At the hearing, the State must prove by a preponderance of the evidence that the

defendant violated the terms and conditions of community supervision. Rickels, 202

S.W.3d at 763; see Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim App. 1993). The State

meets its burden "when the greater weight of the credible evidence creates a reasonable

belief that the defendant violated a condition of his probation as the State alleged" in its

motion to revoke. Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983) (quoting

Martin v. State, 623 S.W.2d 391, 393 n.5 (Tex. Crim. App. 1981)).


         Act, applies to a hearing conducted under that section on or after the effective date of this
         Act, regardless of when the adjudication of guilt was originally deferred or when the offense
         giving rise to the grant of deferred adjudication com m unity supervision was com m itted.

Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 53, 2007 Tex. Gen. Laws 4395, 4413 (current version at
T EX . C OD E C R IM . P R O C . A N N . art. 42.12 § 5(b) (Vernon Supp. 2007)). The act took effect on June 15, 2007.
Id. § 68, 2007 Tex. Gen. Laws at 4414. The trial court conducted appellant's hearing on June 27, 2007, after
the effective date of the am endm ent. Therefore, we have jurisdiction over appellant's appeal. See id.
                                                          3
         A person commits the offense of tampering with evidence if: (1) the defendant

knows that an investigation or official proceeding is pending or in progress; (2) the

defendant alters, destroys, or conceals any record, document, or thing, and; (3) the

defendant intends to impair its verity, legibility, or availability as evidence in the

investigation or official proceeding. TEX . PENAL CODE ANN . § 37.09(a)(1) (Vernon Supp.

2007).

                                         III. Analysis

         By his sole issue, appellant contends that the evidence is insufficient to support the

trial court's finding that he violated a condition of his community supervision by committing

the offense of tampering with physical evidence. Specifically, appellant asserts that the

State did not prove that the substance in his mouth was cocaine. He also contends that

there was no evidence to support the finding that he altered, destroyed, or concealed

anything.

                                   A. Evidence of Cocaine

         First, appellant argues that the State did not prove that the substance in his mouth

was cocaine. Appellant does not cite to any authority and we find none which requires the

State to prove that the substance was, in fact, cocaine. Furthermore, under the plain

language of section 37.09(a)(1) of the penal code, the State must only prove that the

defendant altered, destroyed, or concealed any record, document, or thing intending to

impair its use as evidence. Id.; see Vaughn v. State, 33 S.W.3d 901, 903-04 (Tex.

App.–Houston [14th Dist.] 2000, no pet.) (finding the evidence legally and factually




                                               4
sufficient to prove the essential elements of tampering with physical evidence even though

the State could only prove that the defendant destroyed an unknown object).

                                B. Evidence of Destruction

       Appellant also argues that there is no evidence, other than Officer James Kelemen's

testimony, that he had anything in his mouth or attempted to chew and swallow a

substance. We construe this as a challenge to the second element of tampering with

physical evidence: that he altered, destroyed, or concealed a record, document, or thing.

See TEX . PENAL CODE ANN . § 37.09(a)(1) (Vernon Supp. 2007).

       At the hearing, the State presented the testimony of Officer Kelemen. He testified

that he responded to a call for backup from Officer Mark Walls after Officer Walls stopped

appellant for a traffic violation. When Officer Kelemen approached the scene, he noticed

that appellant "had something in his mouth he was trying to chew, without being observed."

Officer Walls asked appellant to open his mouth and grabbed the sides of his cheeks in

order to prevent appellant from closing his jaw. Officer Kelemen testified that he and

Officer Walls could not get appellant to open his jaw, so they "took him to the ground."

Once on the ground, according to Officer Kelemen's testimony, appellant continued

chewing and produced a frothy foam. The officers' actions, which included applying

pepper spray, were not effective in emptying appellant's mouth. Eventually, appellant

ingested the frothy foam. When appellant finally opened his mouth, Officer Kelemen saw

that it was coated with a cloudy film. Officer Kelemen maintained that appellant's actions

affected the availability of the evidence. A search of appellant's car produced wire mesh

(Brillo pads), which Officer Kelemen testified is used as a filter for crack pipes.



                                              5
       After viewing the evidence in the light most favorable to the trial court's order

revoking community supervision, we conclude the preponderance of the evidence supports

the finding that appellant violated a condition of his community supervision by tampering

with physical evidence. Therefore, we conclude that the trial court did not abuse its

discretion. We overrule appellant's sole issue.

                                    IV. Conclusion

       We affirm.



                                                      NELDA V. RODRIGUEZ
                                                      Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 8th day of May, 2008.




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