Opinion filed May 2, 2019




                                    In The


        Eleventh Court of Appeals
                                 __________

                             No. 11-17-00133-CR
                                 __________

              LAKESHA LASHAWN BARNES, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                             Taylor County, Texas
                         Trial Court Cause No. 26730A


                     MEMORANDUM OPINION
      The jury convicted Lakesha Lashawn Barnes of two offenses: (1) possession
of methamphetamine in an amount between four and two hundred grams and
(2) tampering with evidence.     The jury assessed Appellant’s punishment at
confinement for a term of three years in the Institutional Division of the Texas
Department of Criminal Justice on the conviction for possession of
methamphetamine. The jury also assessed punishment at confinement for a term of
six years on the conviction for tampering with evidence. The jury recommended
that the six-year sentence be suspended and that Appellant be placed on community
supervision. The trial court sentenced Appellant accordingly, and it suspended the
six-year sentence and placed Appellant on community supervision for a term of eight
years. In a single issue, Appellant challenges the sufficiency of the evidence for
both convictions. We affirm.
                                 Background Facts
       On November 9, 2015, the Taylor County Sherriff’s Office arrested
Appellant’s boyfriend, Nathan Hutta, based on an outstanding arrest warrant. There
were multiple officers at the scene, including Deputy Sheriff Frank Johnson and
Agent Kirk Whitehurst. The officers were concerned that Hutta had swallowed
methamphetamine; they observed what appeared to be traces of methamphetamine
around Hutta’s mouth, on the driver’s seat, in the floorboard, and on the console of
his vehicle.
       When Appellant arrived on the scene, she asked if she and Hutta could kiss
“since he was going to prison.” Agent Whitehurst asked Appellant to find out if
Hutta had swallowed anything. After briefly speaking with Hutta as he sat in a patrol
car, Appellant gave him “an unusually long kiss” through the window of the patrol
car.
       Agent Whitehurst testified at trial that, after the kiss, Appellant turned and
started to walk away. Deputy Johnson also testified that, when the kiss ended,
Appellant “kind of duck[ed] and turn[ed] off away” from the officers and “trie[d] to
quickly scurry away.”       Appellant “wouldn’t talk or look” at the officers.
Agent Whitehurst called Appellant’s name, but “she just ignored [him] and just kept
walking away.” The officers tried to stop Appellant, but she continued to walk away.
       Agent Whitehurst testified that, once he was in front of Appellant, he could
tell that she had something in her mouth. He told Appellant to spit it out, but she did
not respond. The officers ultimately placed Appellant on the ground, causing a bag
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containing methamphetamine to fall from Appellant’s mouth. Agent Whitehurst
testified that Appellant did not make any motions to signal that she was in distress
and that she did not appear to be choking or gagging. Deputy Johnson also testified
that he never observed Appellant choking or gagging.
      During Deputy Johnson’s testimony, a video from Deputy Johnson’s
bodycam was admitted into evidence and played for the jury. The video was
generally consistent with Deputy Johnson’s testimony, showing Appellant speaking
with Hutta, kissing Hutta, and then walking away from the officers as they called
her name and commanded her to “spit it out.” The video from the bodycam ended
as Appellant was placed on the ground; Deputy Johnson testified that his bodycam
was knocked off during the scuffle.
      Appellant testified on her own behalf during the guilt/innocence phase. She
testified that she did not know that Hutta had methamphetamine in his mouth when
she approached the window of the patrol car. When asked why she did not
immediately spit the methamphetamine out, Appellant said that “it happened too
fast” and that she was in “shock.” Appellant testified that she was unable to speak
to the officers because she was gagging and choking on the methamphetamine.
Appellant stated that the officers “didn’t even give [her] time” to spit out the
methamphetamine before they “slammed [her] down” to the ground.
                                      Analysis
      In a single issue, Appellant asserts that the evidence is insufficient to prove
that she had the specific knowledge or intent to (1) possess methamphetamine and
(2) conceal or tamper with the methamphetamine to impair its availability as
evidence. Appellant only contests the sufficiency of the evidence with respect to the
issue of criminal intent. We will first address whether there is sufficient evidence
that Appellant acted knowingly or with specific intent to possess methamphetamine.


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      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
      A person commits the offense of possession of a controlled substance if she
knowingly or intentionally possesses a controlled substance. See TEX. HEALTH &
SAFETY CODE ANN. § 481.115(a) (West 2017). Possession is defined as “actual care,
custody, control, or management.” TEX. PENAL CODE ANN. § 1.07(a)(39) (West
Supp. 2018). To prove unlawful possession of a controlled substance, the State must
show (1) that the accused exercised control, management, or care over the substance
and (2) that the accused knew the matter possessed was contraband. Poindexter v.


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State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other
grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015).
      Appellant testified that she did not know that Hutta had methamphetamine in
his mouth when she approached the patrol car to kiss him. Appellant stated that,
when Hutta opened his mouth, she “thought it was a tongue kiss, because [Appellant
is] a passionate person.” Appellant testified that she did not know that Hutta would
place methamphetamine in her mouth.          Appellant contends that she had no
opportunity to choose whether to exercise care, custody, control, or management of
the drugs because “it all happened too fast” and she was in “shock.”
      However, the jury was entitled to disbelieve Appellant’s testimony and
believe the officers’ version of the events. See TEX. CODE CRIM. PROC. ANN.
art. 38.04 (West 1979); Schmidt v. State, 232 S.W.3d 66, 68 (Tex. Crim. App. 2007).
Agent Whitehurst asked Appellant to find out whether Hutta had swallowed any
drugs. Appellant asked the officers if she and Hutta could kiss. As noted by the
officers, the kiss lasted “an unusually long” time.       The officers stated that
Agent Whitehurst called Appellant’s name but that Appellant turned, ignored him,
and continued to walk away. Appellant did not spit out the methamphetamine until
she was placed on the ground. The bodycam video admitted at trial generally
supports the officers’ testimony. Viewing the evidence in the light most favorable
to the verdict, a rational jury could have found beyond a reasonable doubt that
Appellant had the specific knowledge or intent to possess methamphetamine. See
Jackson, 443 U.S. at 319. Therefore, we hold that there was legally sufficient
evidence to support Appellant’s conviction for possession of methamphetamine.
      We next address whether there is sufficient evidence that Appellant acted
knowingly or with specific intent to impair the availability of the methamphetamine
as evidence. Under Section 37.09 of the Texas Penal Code, a person commits the
offense of tampering with evidence when that person, “knowing that an offense has
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been committed, alters, destroys, or conceals any record, document, or thing with
intent to impair its verity, legibility, or availability as evidence.”        PENAL
§ 37.09(d)(1) (West 2016). This statute requires proof of three elements: the
defendant (1) knew about an offense; (2) concealed, altered, or destroyed a thing;
and (3) intended to impair the use of that thing as evidence. Williams v. State, 270
S.W.3d 140, 142 (Tex. Crim. App. 2008); Hines v. State, 535 S.W.3d 102, 109 (Tex.
App.—Eastland 2017, pet. ref’d).
      Appellant contends that, while the evidence is sufficient to find that Hutta
intended to conceal or tamper with evidence, Appellant had no opportunity to form
the requisite knowledge or intent to impair the availability of methamphetamine as
evidence in a subsequent investigation or official proceeding related to the offense.
Appellant asserts that the officers “didn’t even give [her] time” to spit out the
methamphetamine before they brought her to the ground. Appellant testified that
she was unable to respond to the officers because she was gagging and choking on
the methamphetamine.
      Conversely, the officers testified that Appellant never appeared to be choking
or gagging on the bag of methamphetamine. Instead, the officers’ testimony shows
that, after Appellant kissed Hutta, she turned her body and began walking away from
the officers. Agent Whitehurst testified that, once he was in front of Appellant, he
could tell that she had something in her mouth and ordered her to spit it out. The
officers ultimately placed Appellant on the ground, causing a bag containing
methamphetamine to fall from her mouth. Viewing the evidence in the light most
favorable to the verdict, a rational jury could have found beyond a reasonable doubt
that Appellant had the specific knowledge or intent to impair the availability of the
methamphetamine as evidence. Jackson, 443 U.S. at 319. Therefore, we hold that
there was legally sufficient evidence to support Appellant’s conviction for tampering
with evidence. We overrule Appellant’s sole issue on appeal.
                                          6
                                         This Court’s Ruling
        We affirm the judgments of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


May 2, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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