Opinion filed July 31, 2018




                                             In The


           Eleventh Court of Appeals
                                          __________

                                   No. 11-16-00198-CR
                                       __________

                   SCOTT LAFETTE SIMPSON, Appellant
                                                 V.
                        THE STATE OF TEXAS, Appellee


                       On Appeal from the 104th District Court
                                    Taylor County, Texas
                              Trial Court Cause No. 19892B


                         MEMORANDUM OPINION
       Appellant, Scott Lafette Simpson,1 was charged in three paragraphs of a single
count of an indictment with using a deadly weapon in the commission of aggravated
assault of three people, second-degree felonies, and with one count of tampering
with evidence, a third-degree felony. The jury acquitted Appellant of one charge of


       1
        We note that the judgments reflect Appellant’s name as Scott Lafayette Simpson.
aggravated assault and convicted him of two charges of aggravated assault with a
deadly weapon and one count of tampering with evidence.2 The jury assessed his
punishment at fifteen years’ confinement in the Texas Department of Criminal
Justice–Institutional Division (TDCJ–ID) in each of the assault cases and five years’
confinement in the tampering case. The trial court sentenced him accordingly, with
the sentences to be served concurrently.
      Appellant brings two issues on appeal, arguing that the trial court reversibly
erred in failing to comply with the mandates of Articles 37.04 and 37.05 of the Texas
Code of Criminal Procedure3 and that the evidence is insufficient to support his
conviction in the tampering with evidence case. Because the record does not
adequately reflect the events relied on in Appellant’s argument regarding
Articles 37.04 and 37.05, we overrule his first issue. Because the evidence is not
sufficient to support Appellant’s conviction of tampering with evidence, we sustain
his second issue. We reverse and render in part and affirm in part.
                                         Brief Facts
      Joshua Ward was standing with his bicycle on a rural Abilene road when a
blue Jeep pulling a trailer drove up and stopped. Ward assumed the driver needed
directions and walked toward the Jeep. As he approached, the driver, later identified
as Appellant, started screaming at Ward, “You caused this s--t, mother f----r,” pulled
a gun, pointed it at Ward, and then drove off. Ward’s wife drove up, and they called




      2
       See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011), § 37.09(c) (West 2016).

      3
       See TEX. CODE CRIM. PROC. ANN. arts. 37.04, 37.05 (West 2015).

.




                                               2
9-1-1 to report the incident. Then Ward and his wife drove toward their home, which
was in the same direction Appellant had driven.
      Jake Allred, a police officer for the City of Abilene, had not gone to work that
day because he was ill. His fiancée was driving him into town to get medicine when
they came upon a blue Jeep stopped ahead of them in their lane. A white pickup
stopped facing them, and the two vehicles were blocking the road. The driver of the
pickup was arguing with a man standing outside the pickup. As Allred and his
fiancée inched closer to the Jeep and pickup, the pickup drove off. Allred identified
the man from the Jeep as Appellant.
      As Allred and his fiancée eased around the Jeep, Allred saw a gun lying on
the ground in front of the Jeep. Appellant picked up the gun and came to Allred’s
window, screaming and pointing the gun at him, his finger on the trigger. Allred
yelled at his fiancée to go, and she “peel[ed]” while Allred called 9-1-1 to tell
dispatch what was going on. Appellant got into the Jeep and started down the road
in the same direction as Allred. Then Allred saw lights and a patrol unit coming
toward them from behind. Appellant made a U-turn and started toward the patrol
unit. Another patrol unit passed Allred, and the two units boxed Appellant in.
      Carye Adkins was a patrolman with the Abilene Police Department, and he
received a call for service at approximately 5:30 p.m. to respond to an armed subject.
Officer Adkins drove to the reported location of the events Ward had reported. His
unit was equipped with a Watchguard video system that recorded both audio and
video, and the recording of the events germane to this case was admitted into
evidence as State’s Exhibit No. 1.
      The officer was traveling within the Abilene city limits on Elm Dale, a paved
two-lane, undivided road with no improved shoulders, when he passed two white
pickups going in the opposite direction. The first pickup did not stop, but the second


                                          3
did stop, and the driver yelled that there was a guy “acting like an idiot,” throwing
stuff out in the road. Officer Adkins continued for a short distance, saw the Jeep
pulled over on the side of the road, and stopped his unit. The Jeep was no longer
pulling a trailer. Appellant got out of the Jeep with his hands behind his head and,
following Officer Adkins’s instructions, lay down on the road. The officer cuffed
Appellant, put him in the back seat of the patrol unit, and advised Appellant of his
rights. When he asked Appellant if he was armed, Appellant told him he had thrown
the gun out of the Jeep when he saw the officer’s lights. Appellant testified at trial
that he had dropped the gun because he did not want to get shot by the police, noting
that there was a lot of that on television. And Officer Adkins testified that Appellant
had told him where the gun was.
       Appellant’s conduct alternated between calm and bizarre. He would speak
rationally with the officer, then scream with fear, begging the officer not to leave
him. At times, he seemed convinced the cuffs were tightening on his wrists, then
seemed to calm down when Officer Adkins explained the cuffs were locked and
could not tighten. But later, he would start screaming again. Officer Adkins
described Appellant’s condition as possibly intoxicated or under the influence of
something, paranoid, just not right, and not always making sense. He was trying to
keep Appellant calm. Appellant said that he was afraid people would see him, so
Officer Adkins told him he could lie down across the back seat so nobody could see
him.   Officers searched the Jeep with a dog and found no weapons and no
contraband.
       Appellant testified that he had gone a “week and a half” without sleep while
he was abusing drugs for a couple of months, and heavily on the day of his arrest.
He said he had been afraid of the man with the bicycle, and when the man walked
toward Appellant’s Jeep, Appellant pulled the gun out of his console to protect


                                          4
himself. When Appellant saw that the other man’s hands were empty, he put his gun
down and swore at the man, telling him that it was his fault Appellant had pulled the
gun. Appellant admitted he had probably overreacted.
      He testified that, when he saw the lights of a police unit in his mirror, he turned
around, stopped, picked up his pistol, and dropped it out the right back window
because the passenger window would not go down. He said that he got out of the
Jeep with his hands up but that the officer’s car went by, leaving him standing there.
Appellant got back into the Jeep, put the Jeep in drive, and rolled forward “a little
ways.” When Officer Adkins stopped, Appellant stopped, got out again, and put his
hands up.
      Appellant testified that he put the gun out the window because he did not want
the police to shoot him. “I mean, they been shooting a lot of people on TV.”
Appellant testified that the officer did not find the gun at first and that Appellant told
him where it was. Appellant testified he was not trying to hide the gun; he just did
not want to get shot when the police stopped him. Officer Adkins was the only
investigating police officer who testified. He testified that Officer Poynor had
located Appellant’s gun in the “bar ditch” [sic] and near it, Appellant’s
identification. Although there is no photograph of the road and its environs, it is
clearly viewed in State’s Exhibit No. 1.
      The arrest was effected in a rural area within the city limits. The road is paved,
but there are no curbs and no improved shoulders beside the road. On either side of
the road, within the right-of-way, is a stretch of mowed grass referred to as a bar
ditch.4 The grassy area referred to as a bar ditch is an area that slopes away from the
road, continuing the slope of the road. It is not a steep slope, but a gradual slope that
flattens out after a few feet, then gradually slopes up again, creating a shallow


      4
       See Hardy v. State, 281 S.W.3d 414 (Tex. Crim. App. 2009) (discussion of meaning of bar ditch).

                                                 5
channel. The video that is State’s Exhibit No. 1 reveals that vehicles have no trouble
driving into the bar ditches to turn around. The following attachment is a still from
State’s Exhibit No.1:




   Procedure Employed by the Trial Court in Receiving Verdicts in Violation of
        Articles 37.04 and 37.05 of the Texas Code of Criminal Procedure

      In his first issue, Appellant argues that the trial court reversibly erred in failing
to comply with the mandates of Articles 37.04 and 37.05 of the Texas Code of
Criminal Procedure, which provide:
            When the jury agrees upon a verdict, it shall be brought into court
      by the proper officer; and if it states that it has agreed, the verdict shall
      be read aloud by the judge, the foreman, or the clerk. If in proper form


                                            6
      and no juror dissents therefrom, and neither party requests a poll of the
      jury, the verdict shall be entered upon the minutes of the court.5

             The State or the defendant shall have the right to have the jury
      polled, which is done by calling separately the name of each juror and
      asking him if the verdict is his. If all, when asked, answer in the
      affirmative, the verdict shall be entered upon the minutes; but if any
      juror answer in the negative, the jury shall retire again to consider its
      verdict.6

      The jury returned verdict forms that reflected confusion and no clear verdict,
and the trial judge responded with a note:

      Jury —

              I have received your verdict sheet.

            You did not reach a verdict in Count One, Paragraph Three; and,
      you reached two verdicts in Count Two.

             Please continue your deliberations and reach one verdict in each
      of the three paragraphs of Count One, and Count Two.

                                                                         Judge Hamilton

      Appellant argues that the record does not reflect the trial judge made either
party aware of the confusion apparent in the verdict sheet. Nor does the record
reflect that either party was afforded the opportunity to object or otherwise comment
either on the verdict sheet or on the additional instruction issued by the trial court to
the jury.




      5
       CRIM. PROC. art. 37.04.
      6
       Former CRIM. PROC. art. 37.05 (quote from Article 37.05 as it existed at the time of trial).

                                                   7
       The State points out that “[a] verdict must be certain, consistent, and definite.
It may not be conditional, qualified, speculative, inconclusive, or ambiguous.”7 “An
incomplete or unresponsive verdict should not be received by the court.”8 The State
argues that the trial court had a duty to reject an informal verdict, call it to the jury’s
attention, and either correct the verdict with the jury’s consent or send the jury out
to consider their verdict.9
       Article 36.27 of the Texas Code of Criminal Procedure provides:
              When the jury wishes to communicate with the court, it shall so
       notify the sheriff, who shall inform the court thereof. Any
       communication relative to the cause must be written, prepared by the
       foreman and shall be submitted to the court through the bailiff. The
       court shall answer any such communication in writing, and before
       giving such answer to the jury shall use reasonable diligence to secure
       the presence of the defendant and his counsel, and shall first submit the
       question and also submit his answer to the same to the defendant or his
       counsel or objections and exceptions, in the same manner as any other
       written instructions are submitted to such counsel, before the court
       gives such answer to the jury, but if he is unable to secure the presence
       of the defendant and his counsel, then he shall proceed to answer the
       same as he deems proper. The written instruction or answer to the
       communication shall be read in open court unless expressly waived by
       the defendant.
             All such proceedings in felony cases shall be a part of the record
       and recorded by the court reporter.10

       Appellant points out that Articles 37.04 and 37.05 of the Texas Code of
Criminal Procedure mandate the actions required of the trial judge under such


       7
        Reese v. State, 773 S.W.2d 314, 317 (Tex. Crim. App. 1989) (citing Eads v. State, 598 S.W.2d
304 (Tex. Crim. App. 1980)).

       8
        Id.

       9
        See id.
       10
           CRIM. PROC. art. 36.27.

                                                 8
circumstances. He argues that the trial court was required to allow trial counsel the
opportunity “to comment and/or object to the trial court’s actions. Here, the record
in that regard is silent.”
       Appellant is correct. The record is absolutely silent as to any events occurring
between the time the jury began its deliberations and the time the jury returned its
final verdict. The record contains notes from and to the jury. And the verdict form
has a strike-through and a note to disregard a “not guilty” verdict on the tampering
with evidence portion of the form. We do not know, from the record, whether the
jury and the parties were in the courtroom when the jury returned the faulty verdict
forms or whether the faulty verdict was received in chambers or in open court or
whether Appellant and counsel or only counsel or no counsel was present when the
trial court read the faulty verdict and drafted the note, which is in the record.
       Jury—
                     I have received your verdict sheet.
                    You did not reach a verdict in Count One, Paragraph
       Three; and, you reached two verdicts in Count Two.
                    Please continue your deliberations and reach one verdict
       in each of the three paragraphs of Count One, and Count Two.
                                                             Judge Hamilton
       We do not know whether the note was submitted to counsel for comment
before it was sent to the jury. Nor does the record contain any objection to any action
by the trial court regarding receipt of the faulty verdict or the trial court’s response.
The record reflects only: “Jury deliberating 4:53 p.m. to 6:35 p.m.” Then, in open
court, with Appellant and counsel for both sides present without the jury, the trial
court stated that it had been advised that the jury had reached a verdict and asked
whether each side was ready for the jury to come in. Neither side voiced any
objection to any procedure. Indeed, neither side stated for the record what procedure
had been followed by the trial court in relation to the faulty verdict form. The trial

                                           9
court placed the judge’s note to the jury in the record, but no one explained for the
record the circumstances of the note, nor did either side ask the trial court to place a
statement of the circumstances in the record.
       When the jury returned its final verdict in open court and on the record, the
trial judge inquired of the jury whether the verdicts were unanimous and then read
the verdicts aloud. Appellant declined the trial court’s invitation to poll the jury.
       The Texas Court of Criminal Appeals has addressed the rights protected by
Article 36.27 in light of a silent record:
       [T]he Supreme Court has never decided that federal constitutional due
       process principles prohibit an appellate court from presuming on a
       silent record a trial court’s compliance with Article 36.27 requirements
       (including a defendant’s waiver or forfeiture of any objections to a trial
       court’s response to jury questions). Appellant’s federal constitutional
       due-process claim must, therefore, fail even if Green erroneously
       created a state-law presumption of compliance with Article 36.27
       requirements on a silent record.
               With respect to any state-law claims presented in appellant’s
       [sic] first ground for review, we note that, in stating that it would not
       speculate about matters not shown in the record, Green relied on former
       TEX. R. APP. PROC. 50(d), which expressly placed the burden on an
       appellant to present a record showing error requiring reversal. This
       Court in Green then stated that, “[i]n the absence of a showing to the
       contrary in the record, we presume the trial court’s response was in
       open court and in appellant’s presence” as required by Article 36.27.11
       Considering the entire record actually before this court, and without engaging
in improper speculation regarding the silent record, and applying appropriate
presumptions and the proper standard of review, we hold that the record does not
support a finding that the trial court committed reversible error in the portion of the


       11
          Word v. State, 206 S.W.3d 646, 651 (Tex. Crim. App. 2006) (alteration in original) (footnotes
omitted) (relying on Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995)).



                                                  10
trial between the jury’s being instructed to begin its deliberations and the trial judge’s
informing counsel and Appellant that the jury had reached a verdict. We, therefore,
overrule Appellant’s first issue.
                 Sufficiency of the Evidence of Tampering with Evidence
       In his second issue, Appellant argues the evidence is insufficient to support
his conviction of tampering with evidence charged in count two of the indictment
because “the mere fact that Simpson discarded a gun is not necessarily proof
sufficient to support beyond a reasonable doubt” all the necessary elements of the
offense.
       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.12
       The jury was instructed:
             A person commits Tampering With Evidence if the person
       knows that an offense has been committed, alters, destroys, or conceals
       any record, document, or thing with intent to impair its verity, legibility,
       or availability as evidence in any subsequent investigation of or official
       proceeding related to the offense.
              To prove that the defendant is guilty of Tampering With
       Evidence as alleged in Count Two [of] the indictment, the state must
       prove, beyond a reasonable doubt, three elements. The elements are
       that –
               1. The defendant knew that an offense had been
                  committed; and,
               2. The defendant intentionally or knowingly altered,
                  destroyed, or concealed the handgun; and,
               3. The defendant intended to impair the verity, legibility,
                  or availability of the handgun as evidence in the
       12
        Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim.
App. 2016).


                                                  11
                  investigation or official proceeding related to the
                  offense.

        The evidence shows that, after threatening Jake Allred and Joshua Ward with
a handgun, Appellant got out of his Jeep and surrendered to Officer Adkins.
Appellant testified he saw Officer Adkins’s overhead lights in his mirror, turned
around, picked up his pistol, and dropped it out the right back window because the
passenger window would not go down. He said that he got out of the Jeep with his
hands up but that the officer’s car went by, leaving him standing there. If a police
unit passed Appellant, it does not appear from the video that it was the unit
Officer Adkins was driving. Appellant testified he got back into the Jeep, put the
Jeep in drive, and rolled forward “a little ways.” The video does reflect that, when
Officer Adkins stopped, Appellant stopped, got out, and put his hands behind his
head.
        Appellant testified that he put the gun out the window because he did not want
the police to shoot him. “I mean, they been shooting a lot of people on TV.”
Appellant testified that the officer did not find the gun at first and that Appellant told
him where it was. Officer Adkins confirmed Appellant’s statement that Appellant
told him where the gun was. He also testified that Officer Poynor found the gun and
Appellant’s ID in the “bar ditch” [sic].
        The Texas Court of Criminal Appeals has attempted to tackle the issue of how
to determine whether a specific act of discarding an object constitutes tampering
with evidence in violation of Section 37.09 of the Texas Penal Code.
              Similarly, in cases of tampering with evidence, not every act of
        discarding an object evinces an intent to impair the availability of that
        object as evidence in a later investigation or proceeding. There may
        be cases in which the most inculpating inference the evidence would
        support is that the accused simply intended to dispossess himself of the
        object in order to more plausibly disclaim any connection to it. And
        while it is true that “it is within the province of the factfinder to choose

                                            12
      which inference is most reasonable,” it is also true that any inference
      made by the jury must be supported by sufficient evidence.

      . . . [I]f the circumstances were such that the appellant stood absolutely
      no chance of concealing the pipe from the officers, it is less likely that
      he would have formulated the intent to conceal the pipe from the
      officers. In other words, it is less likely (though not impossible) that
      the appellant would harbor a “conscious objective” to cause a result he
      knew to be impossible. Therefore, the reasonableness of the jury's
      inferences about the appellant's intent is informed (at least in some
      measure) by whether the jury could have reasonably inferred that the
      appellant believed that the pipe was, in fact, concealable.13

      Appellant testified he voluntarily submitted to detention by Officer Adkins.
The video of his detention and the testimony of Officer Adkins support Appellant’s
testimony. It is not unreasonable that an armed person would throw down his
weapon when surrendering to a police officer. A firearm within the Jeep could
reasonably have been seen by an arresting officer as a weapon within the reach of a
suspect and a threat to the officer. Not only did Appellant tell Officer Adkins where
he had put the gun, he, apparently, explained in some detail how to locate it. Not
only did Appellant disarm himself when surrendering to Officer Adkins, he threw
his ID out with the gun. He did not throw the weapon into tall weeds or into water.
He threw the gun and ID onto the side of the road. Had he intended to hide the gun,
there were culverts and vegetation along fence rows on either side of the road.
Additionally, the statute requires the further intent to impair the verity, legibility, or
availability of the gun as evidence.14




      13
        Thornton v. State, 425 S.W.3d 289, 304–05 (Tex. Crim. App. 2014) (footnotes omitted).
      14
        PENAL § 37.09(a).

                                                13
        Essentially, Appellant raised a necessity defense,15 although he did not request
a necessity instruction in the jury charge. Appellant’s testimony that he believed it
was necessary to disarm before surrendering to the police to avoid being shot is
evidence of his mens rea. Nothing in the record, other than the fact of putting or
throwing the gun out of the Jeep, suggests any intent to alter, destroy, or conceal the
gun. The fact that he threw his ID out with the gun, that the gun and ID were easily
visible in the daylight, and that he told the police where he had thrown or put the
gun and ID weigh against a finding of intent to conceal the gun and against a finding
of intent to impair the verity, legibility, or availability of the gun. There is no
evidence of intent to alter or destroy the gun.
         In determining the sufficiency of the evidence, the law is clear that, while the
jury is free to disbelieve Appellant’s statement that he disarmed to avoid being shot
when he surrendered to Officer Adkins, his testimony in that respect is not evidence
that the opposite of what he said is true. It is not evidence that he believed he was
concealing the gun and his ID when he dropped them out of the Jeep. Nor is it
evidence that he dropped them out of the Jeep to make the gun unavailable for the
investigation and trial of the aggravated assault offenses.16 His testimony, and that
of Officer Adkins, that Appellant quickly explained to Officer Adkins where to
locate the gun, was not evidence that the opposite of what he and Officer Adkins had
testified to was true.
        Nothing in the record contradicts Appellant’s statement that he put the gun
out of his car as part of his surrender to the police officer because he did not want


        15
          Id. § 9.22 (West 2011).
        16
          See Schoellmann v. Ammann, 352 S.W.2d 920, 922 (Tex. Civ. App.—Houston 1962) (citing R.
T. Herrin Petroleum Transp. Co. v. Proctor, 338 S.W.2d 422, 427 (Tex. 1960) (“[T]estimony from an
interested witness, while it need not be accepted as true by a jury, is not evidence that the exact opposite of
what the witness said is true.”)).


                                                      14
the officer to shoot him, nor is his stated motive for disarming unreasonable or
incredible. Additionally, his actions in explaining to the officers exactly where the
gun was and tossing his ID near the gun reinforce the credibility of his explanation
and defeat the necessary element of intent to impair the verity, legibility, or
availability of the gun.
       Applying the appropriate standard of review, and carefully considering the
entire record, including State’s Exhibit No. 1, the video of Appellant’s detention and
arrest, which could not have been meaningfully transcribed, we hold that the
evidence is insufficient to support the mens rea element of Appellant’s conviction
of tampering with evidence as alleged in Count Two of the indictment. We,
therefore, sustain Appellant’s second issue, reverse the judgment of the trial court as
to Count Two only, and render a judgment of acquittal as to Count Two only.
       We affirm the judgment of the trial court as to Count One, Paragraph One and
as to Count One, Paragraph Two.




                                                      LEE ANN DAUPHINOT
                                                      SENIOR JUSTICE
July 31, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, J.;
Wright, S.C.J., sitting by assignment;17
and Dauphinot, S.J., sitting by assignment.18
Willson, J., not participating.

       17
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at
Eastland, sitting by assignment.
       18
          Lee Ann Dauphinot, Senior Justice (Retired), Court of Appeals, 2nd District of Texas at Fort
Worth, sitting by assignment.

                                                 15
