                                  NO. 12-14-00064-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

TERRON PENEVRICK MITCHELL,                      §       APPEAL FROM THE 145TH
APPELLANT

V.                                              §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §       NACOGDOCHES COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Terron Mitchell appeals his convictions for possession of a controlled substance and
tampering with evidence. He raises four issues on appeal relating to the sufficiency of the
evidence and the trial court’s denial of his motion to suppress. We affirm.


                                         BACKGROUND
       A Nacogdoches County grand jury returned a two count indictment against Appellant for
the offenses of possession of a controlled substance and tampering with physical evidence. The
indictment also alleged that Appellant was an habitual offender. Appellant pleaded “not guilty”
to both counts in the indictment. A jury trial was held in which Appellant was found “guilty” of
both counts. Thereafter, Appellant pleaded “true” to the offenses alleged in the enhancement
paragraphs of the indictment. The jury found the enhancement paragraphs “true” and assessed
Appellant’s punishment for possession of a controlled substance at five years of imprisonment
and thirty-five years of imprisonment for tampering with physical evidence.        This appeal
followed.
                                      MOTION TO SUPPRESS
       In his third and fourth issues, Appellant challenges the trial court’s denial of his motion to
suppress. Appellant argues it was not a crime for him to hold an alcoholic beverage in the street,
and contends that as a result, there could be no reasonable suspicion of criminal activity to justify
his initial detention by law enforcement.
Standard of Review and Applicable Law
       A police officer conducts a lawful temporary detention when he has reasonable suspicion
to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex.
Crim. App. 2005). A police officer has reasonable suspicion to detain an individual if he has
specific, articulable facts that, when combined with rational inferences from those facts, would
lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in
criminal activity. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). The
reasonableness of a detention must be examined in terms of the totality of the circumstances.
Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010).
       In evaluating the totality of the circumstances, the appellate courts apply a bifurcated
standard of review. Elizondo v. State, 382 S.W.3d 389, 393 (Tex. Crim. App. 2012); Valtierra v.
State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). As the sole fact finder, the trial court may
believe or disbelieve all or any part of a witness’s testimony and may make reasonable
inferences from the evidence presented. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim.
App. 2009). Thus, when the trial court’s findings of fact are based on an evaluation of credibility
and demeanor, we afford almost total deference to the trial court’s determination of facts that are
supported by the record. Elizondo, 382 S.W.3d at 393. We review de novo the trial court’s
application of the law to the facts not turning on credibility and demeanor. Ford, 158 S.W.3d at
493. When the trial court does not make explicit findings of fact, we view the evidence in a light
most favorable to the trial court’s ruling and assume that the trial court made implicit findings of
fact supported by the record. Id.
Discussion
       Brett Ayers, a police officer for the Nacogdoches Police Department, testified that he was
patrolling the southeast district of Nacogdoches (a high crime area) when he saw Appellant and
two other men standing in the roadway and holding open alcoholic beverages. He described the
men as holding open beer cans “above their waistline more toward their abdomen.” Officer



                                                 2
Ayers testified that it is a violation of the city ordinance to consume alcohol in a public place.
See NACOGDOCHES, TEX., CODE OF ORDINANCES ch. 86, art. II, § 86-26 (2001 & Supp. 2014),
available at https://www.municode.com/library/tx/Nacogdoches/codes/code_of_ordinances?no
deID=COORNATE (Apr. 13, 2015).1 As a result, he made contact with Appellant and the two
other men for suspicion of consumption of alcohol in a public place.
          Johnny Ray Thompson, a resident of the neighborhood where Appellant was arrested,
was called as a witness regarding Officer Ayers’s contact with Appellant and the two other men.
Thompson testified that he was outside the day of Appellant’s arrest and did not remember
seeing Appellant or the other two men holding any alcoholic beverages or standing in the street.
He testified that the three men were standing in the yard “the whole time.”
          The trial court found that Officer Ayers did not see Appellant actually consume alcohol
in the street. But it is rational to infer from Officer Ayers’s version of the facts that Appellant
and the two other men had consumed or were about to consume alcohol.2 These facts, when
combined with the rational inferences arising therefrom, could permit Officer Ayers to
reasonably conclude that Appellant and the two other men had been or soon would be engaged in
criminal activity—consuming alcohol in a public place. See Derichsweiler, 348 S.W.3d at 914;
NACOGDOCHES, TEX., CODE                 OF   ORDINANCES ch. 86, art. II, § 86-26. Therefore, based on the
totality of the circumstances, Appellant’s detention was supported by reasonable suspicion. See
Ford, 158 S.W.3d at 492. The trial court did not err by denying Appellant’s motion to suppress.
See Valtierra, 310 S.W.3d at 447–48. Accordingly, we overrule Appellant’s third and fourth
issues.


                                             SUFFICIENCY OF THE EVIDENCE
          In his first and second issues, Appellant challenges the sufficiency of the evidence for
each of his convictions (possession of a controlled substance and tampering with evidence).
          When sufficiency of the evidence is challenged on appeal, we view all of the evidence in
the light most favorable to the verdict to decide whether any rational trier of fact could have

          1
              The ordinance was in effect when Officer Ayers made contact with Appellant, and provides that it is
“unlawful for any person to consume alcoholic beverages in any place within the city, excluding restaurants, private
clubs[, and any city owned property with appropriate permission].” See NACOGDOCHES,TEX.,CODE OFORDINANCES ch. 86, art.
II, § 86-26 (2001 & Supp. 2014), available at https://www.municode.com/library/tx/nacogdoches/codes/code_of_ordinances?nodeId=COORNATE
(Apr. 13, 2015).
          2
              The trial court made no other findings of fact.


                                                                 3
found the essential elements of the offense beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010). Under this standard, the jury is the sole judge of the
witnesses’ credibility and the weight of their testimony. Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Brooks, 323 S.W.3d at 899. A jury is permitted to draw multiple reasonable inferences,
but it is not permitted to come to conclusions based on mere speculation or factually unsupported
inferences or presumptions. Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).
       In determining whether the state has met its burden of proving the defendant guilty
beyond a reasonable doubt, we compare the elements of the crime as defined by a hypothetically
correct jury charge to the evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex.
Crim. App. 2014). A hypothetically correct jury charge is one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the state’s burden or restrict its
theories of liability, and adequately describes the particular offense for which the defendant was
tried. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
Applicable Law
       As charged in count I of the indictment, the State was required to show that Appellant
intentionally or knowingly possessed a controlled substance, namely cocaine, in an amount of
less than one gram, by aggregate weight, including any adulterants or dilutants. See TEX.
HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010). To prove unlawful possession of
a controlled substance, the State must prove that (1) the defendant exercised control,
management, or care over the substance, and (2) the accused knew the matter possessed was
contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); see also TEX.
HEALTH & SAFETY CODE ANN. § 481.002(38) (West Supp. 2014) (defining possession as “actual
care, custody, control, or management”).
       As charged in count II of the indictment, the State was required to show that Appellant,
knowing that an offense had been committed, to wit: possession of a controlled substance,
intentionally or knowingly altered, destroyed, or concealed evidence, to wit: cocaine, with intent
to impair its availability as evidence in any subsequent investigation or official proceeding
relating to the offense. See TEX. PENAL CODE ANN. § 37.09(a)(1) (West Supp. 2014); see also
Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014).




                                                4
       A person acts intentionally with respect to the nature of his conduct or to a result of his
conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
TEX. PENAL CODE ANN. § 6.03(a) (West 2011). A person acts knowingly with respect to the
nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature
of his conduct or that the circumstances exist. Id. § 6.03(b). A person acts knowingly with
respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause
the result. Id. A jury may infer intent or knowledge from any facts that tend to prove its
existence, including the acts, words, conduct of the accused, and the method of committing the
crime. Louis v. State, 329 S.W.3d 260, 268 (Tex. App.—Texarkana 2010), aff’d, 393 S.W.3d
246 (Tex. Crim. App. 2012) (citing Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002)).
The Evidence
       Once Officer Ayers made contact with Appellant and the two other men, he advised them
that they could not drink alcohol in the street. Officer Ayers testified that after he made contact,
he started to “run a check” as part of standard police procedure. As he was relaying information
to the dispatcher, Appellant began to walk away, and one of the other men kept putting his hands
in his pockets. Officer Ayers testified that he commanded the man to take his hands out of his
pockets and advised Appellant that he was not free to leave. According to Officer Ayers,
Appellant appeared “extremely nervous,” and while he was conducting consensual searches of
the two other men, Appellant made “a quick movement” into his pocket as if for a gun.
       Officer Ayers testified that upon seeing Appellant reach into his pocket, he immediately
unholstered his weapon and commanded, “Get your hands up.” When Appellant finally brought
his hand out of his pocket, he was holding a clear plastic baggie that contained an off white,
rock-like substance that appeared to be crack cocaine. According to Officer Ayers, Appellant
immediately threw the baggie onto the ground and started stomping and grinding the baggie into
the ground. During this time, Officer Ayers was commanding Appellant to “stop” and “get [his]
hands up,” but Appellant continued. Appellant finally stopped and began to walk away when
Officer Ayers commanded him to stop.           Officer Ayers testified that he walked towards
Appellant, and Appellant “posture[d]” towards him. Thereafter, Officer Ayers took Appellant to
the ground, and with the aid of another responding officer, placed him under arrest.
       Officer Ayers’s patrol vehicle camera was not operating during his contact with
Appellant and the two other men. However, the camera inside the responding officer’s vehicle



                                                 5
was operating, and that video was played before the jury.          The video shows that as the
responding officer arrived at the location, Appellant was standing alone. He took a step forward,
then stepped backwards, dragging his right foot. He raised his hands in the air, and then while
looking at the ground, dragged or swept his left foot on the ground and began walking away.
The responding officer ran towards Appellant, and commanded him to get on the ground. Shortly
thereafter, Officer Ayers took Appellant to the ground.
        Officer Ayers testified that after Appellant was handcuffed, he returned to the location
where Appellant was grinding the contents of the baggie into the ground. According to Officer
Ayers, the baggie was open and did not contain the same amount of the substance that was inside
when Appellant first took it out of his pocket.
        Officer Ayers testified that he was able to recover some of the substance from the baggie
and field tested it at the scene. The field test showed that the substance was positive for cocaine.
The substance was submitted for additional testing, and Elosia Esparza, a drug chemist with the
Texas Department of Public Safety Crime Laboratory, testified that the substance submitted in
this case consisted of .04 grams of cocaine. 3
        On direct examination, Officer Ayers confirmed that he saw Appellant “alter, conceal, or
destroy” the substance contained in the baggie that Appellant threw onto the ground. On cross
examination, Ayers testified that, although he was able to recover some of the cocaine that had
been in the baggie, he was not able to recover all of it due to Appellant’s conduct. He explained
that Appellant concealed the cocaine when he placed his foot on top of the baggie and ground it
into the dirt. Officer Ayers further testified that where Appellant stood was sandy, and that
Appellant shuffled and kicked the open baggie into the dirt after he was finished grinding it into
the dirt.
        In its case in chief, the defense called Johnny Thompson. In addition to testifying that he
never saw Appellant or the two other men drinking alcohol in the street, Thompson testified that
he never saw Appellant throw anything on the ground.
Discussion
        Appellant does not challenge the sufficiency of the evidence that shows the substance
contained in the baggie was cocaine, or that the substance contained .04 grams of cocaine.
Instead, he argues that because there is no video and no confession, and the witnesses’ testimony

        3
            The parties stipulated to the chain of custody.


                                                              6
is conflicting, there is no evidence that he committed either offense. In his brief, he suggests that
the State should have called the two men who were with him as witnesses in order to connect
him to the crimes. We disagree.
       We must give deference to the jury’s decision regarding the weight to give Officer
Ayers’s and Johnny Thompson’s testimony because the jury was in the best position to judge the
credibility of each. See Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008). Officer
Ayers’s testimony showed that Appellant removed a baggie containing a rock-like substance
from his pocket. Moreover, the video from the responding officer’s patrol car is consistent with
Officer Ayers’s testimony. After viewing the evidence in the light most favorable to the verdict,
we conclude that a rational trier of fact could have found the essential elements of possession of
a controlled substance as set forth in count I of the indictment beyond a reasonable doubt. See
Brooks, 323 S.W.3d at 899.
       When Appellant removed the baggie of cocaine from his pocket, Officer Ayers was in the
process of searching the two men who were with him. We note that 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. See Thornton v. State, 425 S.W.3d 289, 304 (Tex. Crim. App.
2014). But it can be inferred from the circumstances in this case that Appellant’s “quick”
reaching into his pocket, dropping the baggie, and “grinding” it into the ground was intended to
impair the cocaine’s availability as evidence. See TEX. PENAL CODE ANN. § 37.09(a)(1); Louis,
329 S.W.3d at 268. Moreover, Officer Ayers’s testimony that the amount of cocaine inside the
baggie was less than what he originally saw, and that he was able to recover only “some” of the
evidence, supports a finding that Appellant intentionally or knowingly altered, destroyed, or
concealed the cocaine. See Rabb, 434 S.W.3d at 617 (“[W]hile ‘conceal,’ ‘destroy,’ and ‘alter’
each have their own meaning, they are not mutually exclusive[.]”). After viewing the evidence in
the light most favorable to the verdict, we conclude that a rational trier of fact could have found
the essential elements of tampering with physical evidence as set forth in count II of the
indictment beyond a reasonable doubt. See Brooks, 323 S.W.3d at 899.
       The evidence supporting Appellant’s convictions for possession of a controlled substance
and tampering with physical evidence is legally sufficient. Accordingly, we overrule Appellant’s
first and second issues.




                                                 7
                                                  DISPOSITION
         Having overruled Appellant’s four issues, we affirm the judgment of the trial court.



                                                                JAMES T. WORTHEN
                                                                   Chief Justice

Opinion delivered April 30, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 30, 2015


                                         NO. 12-14-00064-CR


                              TERRON PENEVRICK MITCHELL,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                Appeal from the 145th District Court
                      of Nacogdoches County, Texas (Tr.Ct.No. F1018049)

                        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.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
