No. 05-03-01224-CR
Opinion Filed June 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380Th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-81405-02. Affirm.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
Opinion By Justice WRIGHT.
Tina Kay Nichols appeals her conviction by a jury for the offense of tampering with physical evidence. After the jury found appellant guilty, the trial court sentenced her to ten years' confinement. In a single point of error, appellant contends that the evidence is factually insufficient to support her conviction. We affirm the trial court's judgment.
Background
Collin County deputy sheriff Clint Praslicka testified that he stopped appellant's vehicle because her car had no front license plate, and appellant made a turn without using a signal light. When Praslicka spoke with appellant, she told him that she did not have a driver's license or insurance card, and that there were outstanding warrants for her arrest. Praslicka confirmed the warrants and decided to place appellant under arrest. However, before taking appellant to the police station, Praslicka agreed to first follow appellant home so that she could drop off her child and leave her vehicle with the child's father. After appellant turned the child over to the father, Praslicka handcuffed appellant and obtained appellant's consent to search her vehicle. Inside the car, Praslicka found a complete syringe, a partial syringe, a spoon containing residue and a cotton ball stuck on it, and two other spoons. Praslicka also found a small bag with white residue in it in appellant's purse located behind the driver's seat. Praslicka testified that he suspected that the spoon with residue and a cotton ball stuck on it was used for methamphetamine use because that is the typical paraphernalia for methamphetamine drug use. Praslicka then took appellant to the Collin County Jail. Praslicka testified that because it was common for females to conceal contraband in their bra, underwear or socks, he requested a female officer to search appellant for contraband Praslicka removed appellant's handcuffs and Officer LaTonya Jackson searched appellant. Jackson testified that when she requested appellant to open her mouth, appellant initially did not respond. When asked a second time, appellant opened her mouth slightly and Jackson saw a small plastic baggie containing a white substance inside appellant's mouth. Jackson asked appellant to remove what was in her mouth, and appellant responded, through clenched teeth, that she did not know what Jackson was talking about. Jackson then noticed appellant tilt her head back and swallow the baggie. The swallowed bag was never retrieved. Discussion
In her sole issue, appellant contends the evidence is factually insufficient to support her conviction. When conducting a factual sufficiency review, we review all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, slip op. at 8, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). Evidence of guilt is factually insufficient if, when considered by itself, it is too weak to support the finding of guilt beyond a reasonable doubt. Id. When there is evidence both supporting and contrary to the verdict, "the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met." Id. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Resolution of conflicts in the evidence and credibility of witnesses lies within the fact finder's exclusive province. Obigbo v. State, 6 S.W.3d 299, 305 (Tex. App.-Dallas 1999, no pet.). To support appellant's conviction, the State was required to prove beyond a reasonable doubt that the appellate destroyed, concealed, or altered a controlled substance, with the intent to impair its verity or availability as evidence in the investigation or official proceeding. See Tex. Pen. Code Ann. § 37.09(a)(1) (Vernon 2001). In cases such as this, the State meets its burden and withstands a factually insufficient challenge when an officer testifies that he/she identified the evidence in question, observed that the defendant was in possession of the evidence, and saw the defendant destroy, conceal, or alter the evidence. See, e.g., Dooley v. State, 133 S.W.3d 374, 379 (concluding that the evidence was factually sufficient to support a conviction of tampering with evidence when officers observed the defendant cutting a rock of crack cocaine into smaller pieces and crumble the rock into a fine powder and scatter it in the bathtub before the officers could seize the cocaine); Lewis v. State, 56 S.W.3d 617, 625-26 (Tex. App.-Texarkana 2001, no pet.) (finding that the evidence was factually sufficient to support a conviction of tampering with evidence by concealment when an officer (1) identified the drugs in the defendant's mouth, (2) subsequently saw the defendant swallowing the drugs, and (3) ordered the defendant to spit out the drug but the defendant refused). Here, Jackson testified she saw appellant holding a small bag of white powder inside her mouth and then swallow the bag. Although she did not see appellant put the baggie into her mouth, this does not render the State's evidence factually insufficient. The evidence presented was neither too weak to support the finding of guilt beyond a reasonable doubt nor was contrary evidence so strong that the standard could not have been met. We overrule appellant's sole point of error. Accordingly, we affirm the trial court's judgment.