Nos. 05-09-00192-CR, 05-09-00193-CR
Opinion Filed March 15, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F07-58915-I and F07-58916-I.
Before Justices BRIDGES, FRANCIS, and LANG.
Opinion By Justice LANG.
Eurral Jacoy Anderson appeals the trial court's judgments convicting him of tampering with physical evidence and possession of cocaine with intent to deliver in an amount of four grams or more, but less than 200 grams. The jury found Anderson guilty of both offenses. Anderson pleaded true to the enhancement. The trial court assessed his punishment at: (1) ten years of imprisonment and a $500 fine for the offense of tampering with physical evidence; and (2) twenty years of imprisonment and a $1,000 fine for the offense of possession of cocaine with intent to deliver in an amount of four grams or more, but less than 200 grams. Anderson raises three issues on appeal arguing: (1) the trial court erred when it denied his motion to suppress on the basis that he did not have standing to contest the search; (2) if Anderson has standing to contest the search, the warrantless search was unconstitutional because the police trespassed on the curtilage of the residence to peep through a window; and (3) the evidence is legally insufficient to prove his conviction for tampering with physical evidence. We conclude the trial court did not err when it denied Anderson's motion to suppress. Also, the evidence is sufficient to support Anderson's conviction for tampering with evidence. The trial court's judgments are affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Anderson's sister, NiBrashal Anderson, signed a lease to rent a house at 3514 Latimer Street, Dallas, Texas and moved into the house the next day. When she moved in, she brought an air mattress and a television. She had no other furniture in the house. After staying in the house for a couple of nights with Anderson, they returned to their mother's house. While they were living at their mother's house, NiBrashal allowed a friend, "John-John," and his girlfriend to live in the house she was renting. During that time, John-John gave NiBrashal the money to pay the rent. NiBrashal intended to move back into the rented house with Anderson once she was able to furnish the house. Officer Brian Emerson received a complaint that drugs were being sold from a house located at 3514 Latimer Street. While investigating the complaint, the police saw a man knocking at the back door of the house. When Emerson approached the man, he ran away. Emerson pursued the man, but was not able to catch him. Meanwhile, the other police officers approached the house. The window blinds were open and the lights were on in the living room. Through that window, Officer Joe King saw two fold-out chairs. Beside the leg of one of the chairs, he saw a plastic baggie containing what appeared to be crack cocaine, another baggie containing what appeared to be smaller baggies of marijuana, and a Crown Royal bag. Officer Brian Rowden agreed that there appeared to be drugs inside the house. Then, they saw a man wearing a black sweatshirt and shorts, who was later identified as Anderson, walk to the chair, pick up the baggies, and quickly walk out of their view. They also heard voices coming from inside the house. The officers removed the burglar bars on the front door and kicked it in. They had difficulty getting the door open, but later observed that it had been reinforced with extra beams of wood. The police found a man, who was later identified as Bobby Brooks, in the kitchen or hallway area who laid face down on the floor when he heard them yell "Police." Emerson found Anderson in the bathroom standing in at least one inch of water, throwing green baggies down the toilet, and continuously trying to flush it. Emerson arrested Anderson. In the living room, there were two folding chairs, a small television sitting on the floor, and a video game system. In the kitchen, the police found scales and cocaine residue on the counter. In the sink they found Pyrex pans and a whisk with drug residue. In the bathroom, the police retrieved baggies from the toilet, one of which contained cocaine. In the bathroom sink, they found $1,099 in loose cash. In a bedroom, the police found a deflated air mattress. They did not find any clothing or personal items in the house. Anderson was indicted for tampering with physical evidence and possession of cocaine with intent to deliver in an amount of four grams or more, but less than 200 grams. The jury found Anderson guilty of both offenses. Anderson pleaded true to the enhancement. The trial court assessed his punishment at: (1) ten years of imprisonment and a $500 fine for the offense of tampering with physical evidence; and (2) twenty years of imprisonment and a $1,000 fine for the offense of possession of cocaine with intent to deliver in an amount of four grams or more, but less than 200 grams. II. MOTION TO SUPPRESS
In issues one and two, Anderson argues the trial court erred when it denied his motion to suppress based on his lack of standing to challenge the search and that the police trespassed on the curtilage of the residence. He argues that he was an invited guest at the house his sister rented, he had permission to enter the premises, and he had some degree of control over the premises. Also, he claims the police created the exigent circumstances that permitted their warrantless entry into the house when they trespassed on the property. The State responds that Anderson did not own, rent, or live in the house, and he was not an overnight guest at the time of his arrest. A. Standard of Review
The issue of whether a defendant had a legitimate expectation of privacy that permits him to assert a Fourth Amendment challenge to the admission of evidence obtained by a governmental intrusion is a question of law that appellate courts review de novo. See Turner v. State, 132 S.W.3d 504, 507 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd); State v. Johnson, 896 S.W.2d 277, 285 (Tex. App.-Houston [1st Dist.] 1995), aff'd, 939 S.W.2d 586 (Tex. Crim. App. 1996). B. Applicable Law
A defendant cannot assert a Fourth Amendment claim challenging the admission of evidence obtained by a governmental intrusion unless he had a legitimate expectation of privacy in the place invaded. See e.g., Minnesota v. Carter, 525 U.S. 83, 88 (1998); Rakas v. Illinois, 439 U.S. 128, 143 (1978); Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002); see also Smith v. State, 176 S.W.3d 907, 913 (Tex. App.-Dallas 2005, no pet.). To have a legitimate expectation of privacy, a defendant must show that: (1) by his conduct, he exhibited an actual subjective expectation of privacy (i.e., a genuine intention to preserve something as private); and (2) circumstances existed under which society is prepared to recognize the defendant's subjective expectation as objectively reasonable. Granados, 85 S.W.3d at 223; see also Smith, 176 S.W.3d at 913. By bringing a motion to suppress, the defendant bears the burden of establishing all of the elements of his Fourth Amendment claim. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Granados, 85 S.W.3d at 222-23. A defendant seeking to suppress evidence on the ground that it was obtained in violation of the Fourth Amendment must first show that he personally had a reasonable expectation of privacy that the government invaded. Rakas, 439 U.S. at 149-50; Richardson v. State, 865 S.W.2d 944, 948-49 (Tex. Crim. App. 1993). C. Application of the Law to the Facts
NiBrashal Anderson stated that her name was the only name on the lease, she and Anderson were living at their mother's house at the time of Anderson's arrest, and Anderson did not spend the night at the house the day before he was arrested. Also, she stated that "John-John" and his girlfriend were living at the house at that time of Anderson's arrest and they gave her the money to pay the rent. King stated that he saw two small folding chairs, a small television on the floor, and a video gaming system in the living room. Also, he saw a deflated air mattress in one of the bedrooms. He did not see any clothing or personal items and it did not appear that anyone was living there. We conclude that Anderson may not challenge the search of the house because he failed to meet his burden to show he had a legitimate expectation of privacy in the house. Issue one is decided against Anderson. Based on our resolution of issue one, we need not decide Anderson's second issue on appeal. III. SUFFICIENCY OF THE EVIDENCE
In issue three, Anderson argues that the evidence is legally insufficient to prove his conviction for tampering with physical evidence. He argues that there was no evidence the amount of cocaine that was flushed down the toilet would have changed the degree of the offense. He argues that if the evidence has not been tampered with in such a way as to have any significant effect on the ability of the State to prosecute a particular grade of offense, then there has not really been a tampering with the physical evidence. The State responds that Anderson's testimony that he flushed more than four grams of cocaine down the toilet is sufficient to support his conviction for tampering with the physical evidence. Also, the State argues that the State is not required to prove the amount of drugs that Anderson flushed was material such that it would change the charge against him for possession of cocaine with intent to deliver in an amount of four grams or more, but less than 200 grams. A. Standard of Review
Under the proper sufficiency standard of review, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). Appellate courts are required to determine whether any rational juror could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n. 19. An appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326; Brooks, 323 S.W.3d at 899. All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 130 S. Ct. 665, 672 (2010); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319. B. Applicable Law
Three elements define the offense of tampering with physical evidence: (1) knowing that an investigation or official proceeding is pending or in progress, (2) a person alters, destroys, or conceals any record, document, or thing, (3) with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding. Tex. Penal Code Ann. § 37.09(a)(1) (West Supp. 2009); Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008). The three elements of section 37.09(a)(1) include two different culpable mental states-knowledge and intent. Williams, 270 S.W.3d at 142. The statute requires the knowledge of an investigation and the intent to impair a thing's availability. Id. Under section 37.09(a)(1), a destroyed thing is that which has been ruined and rendered useless, i.e, a thing is destroyed when it has lost its identity and is no longer recognizable. Id. at 146. C. Application of the Law to the Facts
Anderson argues that the evidence is insufficient to support his conviction for tampering with the physical evidence because he admitted to the amount of the missing cocaine. As a result, the missing cocaine would not have changed the punishment category of the offense and the remaining cocaine was enough to convict him. Anderson is attempting to add an element of materiality to the offense that would require that the tampering change the punishment category of the offense. However, the statute does not require and the jury was not required to find that the amount of cocaine destroyed was material or that the tampering would have changed the punishment category of the offense. We conclude the evidence was sufficient to support Anderson's conviction for tampering with physical evidence. Issue three is decided against Anderson. IV. CONCLUSION
The trial court did not err when it denied Anderson's motion to suppress. Also, the evidence is sufficient to support Anderson's conviction for tampering with evidence. The trial court's judgments are affirmed.