Opinion filed July 1, 2010




                                           In The


   Eleventh Court of Appeals
                                         __________

                        Nos. 11-08-00272-CR & 11-08-00273-CR
                                      __________

                             MIA ALICIA COFFEE, Appellant

                                              V.

                               STATE OF TEXAS, Appellee


                           On Appeal from the 91st District Court
                                  Eastland County, Texas
                    Trial Court Cause Nos. CR-07-21,337 & CR-07-21,472


                             MEMORANDUM OPINION
       Mia Alicia Coffee appeals from two guilty verdicts of tampering with physical evidence
and possession with intent to deliver cocaine in the amount of four grams or more but less than
200 grams. She was sentenced to five years confinement for tampering with physical evidence
and twenty-five years confinement for possession with the intent to deliver. We affirm.
                                       Background Facts
       On March 22, 2007, Trooper Brandon Smedley of the Texas Department of Public Safety
observed appellant’s vehicle traveling at a high rate of speed. Trooper Smedley monitored
appellant’s vehicle with his radar and calculated appellant’s speed to be eighty-six miles per
hour. Trooper Smedley initiated a traffic stop and identified appellant as the driver.
Trooper Smedley noticed the odor of marihuana and observed the front seat passenger
attempting to hide an open beer bottle. Trooper Smedley asked appellant to exit and come to the
back of the vehicle. While appellant was at the back of the vehicle, Trooper Smedley talked with
the passenger. Trooper Smedley suspected that there was some type of criminal activity going
on, and he asked the passenger to step out of the vehicle for a pat-down search. During the pat-
down search, the passenger was not cooperative.            He kept putting his hand down by his
waistband. Trooper Smedley felt what he thought were drugs in the waistband of the passenger’s
pants. Before he could get the item and identify it, the passenger broke free and ran around the
car. Trooper Smedley drew his gun and ordered both the passenger and appellant to the ground,
but neither appellant nor the passenger complied. Trooper Shaun Lewis arrived on the scene to
assist Trooper Smedley.        The troopers were then able to restrain both appellant and the
passenger. Trooper Smedley found over eighty-eight grams of crack cocaine on appellant’s
person.
          In two separate indictments, appellant was charged with possession with intent to deliver
cocaine in the amount of four grams or more but less than 200 hundred grams and tampering
with physical evidence. Appellant pleaded not guilty to both charges and proceeded to a jury
trial on both indictments. The jury found appellant guilty of both charges. She appeals each
conviction. We address both appeals in one opinion.
                                               Issues on Appeal
          Appellant contends that the evidence is legally and factually insufficient to support the
verdict that she tampered with physical evidence.          She also contends that the evidence is
factually insufficient to support the verdict that she intentionally possessed cocaine with the
intent to deliver it.
                                              Standard of Review
          In order to determine if the evidence is legally sufficient, 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 essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). The
factfinder is the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The factfinder may
choose to believe or disbelieve all or any part of any witness’s testimony. Sharp v. State, 707
S.W.2d 611, 614 (Tex. Crim. App. 1986).
          To determine if the evidence is factually sufficient, we review all of the evidence in a
neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part
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Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11
(Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997);
Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, we determine whether the
evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust
or whether the verdict is against the great weight and preponderance of the conflicting evidence.
Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.
                                     Tampering with Evidence
       A person commits an offense if, knowing that an investigation or official proceeding is in
progress, she alters, destroys, or conceals any record, document, or thing with the intent 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. 2009). The elements of the offense are met
when the offender conceals a thing with the intent to impair its availability as evidence in an
investigation that she knows is in progress. Williams v. State, 270 S.W.3d 140, 145 (Tex. Crim.
App. 2008).
       Appellant argues that the drugs found on appellant were drugs that she possessed from
the time she exited the car. Appellant asserts that the evidence does not show that the drugs that
were found on appellant were the same drugs that Trooper Smedley thought he felt on the
passenger during the pat-down. Therefore, appellant argues the evidence does not show that
appellant tampered with physical evidence that was part of an investigation. We disagree.
       Trooper Smedley testified that appellant was completely aware of what was going on and
was a willing participant in the altercation with the passenger. The video evidence of the stop
shows that appellant was moving closer and closer to Trooper Smedley and the passenger while
he was being searched. Trooper Smedley testified that he believed appellant was waiting for a
handoff of the drugs from the passenger. The video evidence also showed that appellant raised
her hands in the air and received the bag of drugs. Trooper Smedley testified that appellant
could be seen shoving the drugs down her pants on the video. Later, appellant attempted to
conceal the drugs better under her clothes. Trooper Smedley also testified that, when he asked
appellant where the passenger had put the drugs, she denied knowing anything about the drugs.
Appellant continued to deny any knowledge of the drugs until a trooper started to conduct a pat-
down of her clothing. Trooper Smedley testified that the drugs he found on appellant’s person
were the same drugs that he felt in his pat-down search of the passenger.


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       Deputy Sheriff Robert Rains testified that he has extensive experience in dealing with
drug offenses. Deputy Rains testified that he reviewed the video of the stop and arrest of
appellant. He testified that he could see the drugs being passed to appellant on the video. He
further testified that the passenger was loud and tried to draw attention to himself so that
appellant would have time to hide the drugs.         Based on his review of the video and his
experience in working with drug offenses, Deputy Rains concluded that the actions of appellant
and the passenger were rehearsed and that appellant knew exactly what to do in the event a law
enforcement officer stopped them. This indicated to him that she knowingly and intentionally
tampered with the evidence by hiding it.
       After reviewing all the evidence, we find that the evidence was legally and factually
sufficient to support the jury’s verdict of guilty of tampering with physical evidence. Appellant
knew that Trooper Smedley was conducting a drug investigation. The evidence shows that the
passenger handed off the drugs to appellant while he was running from Trooper Smedley. The
evidence further shows that appellant was trying to hide the drugs in her waistband in order to
impair Trooper Smedley’s investigation. She also was trying to hinder the investigation by lying
to Trooper Smedley about her knowledge of the location of the drugs. We overrule appellant’s
issue in Cause No. 11-08-00273-CR.
                                 Possession with Intent to Deliver
       A person commits the offense of possession of a controlled substance with the intent to
deliver if she knowingly exercised actual care, custody, control, or management of the controlled
substance and intended to transfer, actually or constructively, the controlled substance to another.
TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(8), (38), 481.112(a) (Vernon 2010); Hawkins v.
State, 687 S.W.2d 48, 50 (Tex. App.—Dallas 1985, pet. ref’d). Intent to deliver can be proven
by circumstantial evidence. Rhodes v. State, 913 S.W.2d 242, 251 (Tex. App.—Fort Worth
1995), aff’d, 945 S.W.2d 115 (Tex. Crim. App. 1997). An oral expression of intent is not
required; intent can be inferred from the acts, words, and conduct of the accused. Patrick v.
State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Some factors to consider in determining
intent include (1) the nature of the location where the defendant was arrested, (2) the quantity of
drugs the defendant possessed, (3) the manner of packaging of the drugs, (4) the presence or
absence of drug paraphernalia (for use or sale), (5) whether the defendant possessed a large
amount of cash in addition to the drugs, and (6) the defendant’s status as a drug user. Williams v.


                                                 4
State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Expert testimony
may be introduced to prove intent to deliver. Rhodes, 913 S.W.2d at 251.
       Trooper Smedley testified that Trooper Lewis found scales that could be used in drug
transactions in the driver’s side door of the vehicle. He further testified that he did not find any
other drug paraphernalia in the vehicle that would indicate personal use of the drugs.
Deputy Rains testified that, if the cocaine found was for personal use, he would expect to find
some type of paraphernalia to use the cocaine, such as a Brillo pad or crack pipe. He also
testified that it was not unusual for there not to be any type of packaging materials found because
crack cocaine is not sold in packages. Deputy Rains stated that, in his expert opinion, the
quantity of drugs found would indicate that they were for distribution and not personal use.
       Appellant argues that, because she only possessed the drugs for a limited period of time
when the passenger forced the drugs upon her, she did not form the intent to deliver the drugs.
The evidence demonstrates that appellant was involved in the entire altercation with
Trooper Smedley. The evidence does not show that she was aware of the drugs only after the
passenger handed them to her. Deputy Rains testified that the conduct of appellant appeared
rehearsed as if she knew what to do in the event that law enforcement stopped them. Her actions
were not the actions of a person upon whom drugs were forced by another but, rather, of a person
involved in possessing the drugs with the intent to deliver. The evidence is factually sufficient to
support the jury’s verdict that appellant possessed drugs with the intent to deliver. Appellant’s
issue in Cause No. 11-08-00272-CR is overruled.
                                            Conclusion
       We affirm the trial court’s judgments.




                                                             RICK STRANGE
July 1, 2010                                                 JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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