Opinion
No. 11-18-00181-CR
07-16-2020
HEISMAN GARZA BENITEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court Taylor County, Texas
Trial Court Cause No. 27422A
MEMORANDUM OPINION
The jury convicted Heisman Garza Benitez of tampering with evidence and possession of methamphetamine. On the conviction for tampering with evidence, the trial court found an enhancement allegation to be true and assessed Appellant's punishment at confinement for a term of eight years in the Institutional Division of the Texas Department of Criminal Justice. On the conviction for possession of methamphetamine, the trial court assessed Appellant's punishment at confinement for a term of twenty-two months in the State Jail Division of the Texas Department of Criminal Justice. The trial court ordered the sentences to run concurrently.
In his sole issue on appeal, Appellant challenges the sufficiency of the evidence supporting his conviction for tampering with evidence. We affirm.
Background Facts
Brandon Adames is a narcotics agent with the Taylor County Sheriff's Office. On June 16, 2017, he observed a 1999 Honda Accord parked across the street from a house that was connected to past drug activity. Agent Adames saw a person leave from the house and get into the Honda. Agent Adames decided to follow the Honda as it pulled away. He attempted to stop the Honda when he observed it failing to signal a turn. The driver of the Honda sped up when Agent Adames activated the lights on his vehicle.
Agent Adames followed the Honda in pursuit. As the Honda was making a turn, Agent Adames observed a hand come outside of the passenger window and discard some "clear bags." Agent Adames was only a car length behind the Honda at the time and was able to see the two occupants of the Honda. He testified that he did not observe the driver of the Honda lean over to discard the bags out of the passenger window.
Sergeant Shay Bailey of the Taylor County Sheriff's Office subsequently joined in the pursuit of the Honda. Officers were eventually able to stop the Honda. Jacklyn Pace was the driver and Appellant was her passenger. As Sergeant Bailey and other officers processed the occupants of the Honda, Agent Adames returned to the location where he observed the bags being dropped from the passenger's window. Agent Adames estimated that five to ten minutes had passed before he was able to return to the location where the bags had been discarded. The bag that Agent Adames recovered contained a small amount of methamphetamine.
Appellant testified on his own behalf during the guilt/innocence phase. He testified that Pace was giving him a ride to pick up cigarettes and that she informed him that she needed to make some stops before dropping him off at his house. Appellant stated that he remained inside the car during these stops. He testified that, after Pace started driving faster during the pursuit, she pulled out a plastic bag and asked him to throw it out the window. Appellant further testified that Pace threw the bag out the passenger window after he refused to throw it out.
Analysis
In his sole issue on appeal, Appellant challenges the sufficiency of the evidence supporting his conviction for tampering with evidence. 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 essential 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.
It is not necessary that the evidence directly prove the defendant's guilt; circumstantial evidence is as probative as direct evidence in establishing a defendant's guilt, and circumstantial evidence can alone be sufficient to establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not point directly and independently to guilt if the cumulative force of all incriminating circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13. Because evidence must be considered cumulatively, appellate courts are not permitted to use a "divide and conquer" strategy for evaluating the sufficiency of the evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead, appellate courts must consider the cumulative force of all the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
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 been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence." TEX. PENAL CODE ANN. § 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's evidentiary challenge implicates the second element. He asserts that, since the indictment only alleged that Appellant concealed evidence, the State was precluded from obtaining a conviction under the statutory variances of altering or destroying the evidence. We agree. See Hines, 535 S.W.3d at 109-10. "[T]he sufficiency of the evidence is measured by the specific alternative elements that the State has alleged in the indictment." Id. at 109 (quoting Cada v. State, 334 S.W.3d 766, 773-74 (Tex. Crim. App. 2011)); see Rabb v. State, 434 S.W.3d 613, 618-19 (Tex. Crim. App. 2014) (Cochran, J., concurring) ("[T]he State lost this conviction because it did not pay sufficient attention to its pleading. . . . [T]here is . . . a difference between 'concealing,' 'altering,' and 'destroying' evidence. . . . And that is why a prosecutor might allege all three criminal acts in its indictment.").
Appellant asserts that, if we consider only whether Appellant concealed methamphetamine, the evidence is insufficient because the act of throwing the methamphetamine out of the window "merely exposed that which was hidden from the officer's view in the vehicle." He contends that the act of throwing the methamphetamine out of the vehicle in the presence of the officer cannot rationally be considered concealment. We disagree.
In Hines, we interpreted the meaning of "conceal" as the word is used in Section 37.09 in order to determine if the defendant's conduct fit under the conduct proscribed by the statute. 535 S.W.3d at 110. We noted that, "[i]n the absence of statutory definitions, 'we turn to the common, ordinary meaning of that word.'" Id. (quoting Williams v. State, 270 S.W.3d 140, 146 (Tex. Crim. App. 2008)). We then noted that Merriam-Webster's Collegiate Dictionary provides two definitions for "conceal": (1) "to prevent disclosure or recognition of" and (2) "to place out of sight." Id. (citing Conceal, MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (11th ed. 2004)). We concluded that, under either definition, "a dispositive inquiry is whether law enforcement noticed the object before the defendant tried to hide it and maintained visual contact." Id.
After our decision in Hines, the Texas Court of Criminal Appeals analyzed the meaning of "conceal." Stahmann v. State, No. PD-0556-18, 2020 WL 1934894, at *5-6 (Tex. Crim. App. Apr. 22, 2020). The court agreed with the Corpus Christi Court of Appeals that "[a]ctual concealment requires a showing that the allegedly concealed item was hidden, removed from sight or notice, or kept from discovery or observation." Id. at *6 (alteration in original) (quoting Stahmann v. State, 548 S.W.3d 46, 57 (Tex. App.—Corpus Christi-Edinburg 2018), aff'd, 2020 WL 1934894).
Based on Agent Adames's testimony about his observation of the Honda as he closely followed it, a rational jury could have concluded that Appellant was the person that discarded the clear bags out of the passenger window. The question that we must then resolve is whether this act constituted concealment. Under the definitions set out above of "conceal," a person commits an offense under Section 37.09 by concealing evidence if he removes the item from sight. Conversely, no offense is committed if law enforcement maintains visual contact of the item despite the defendant's actions.
We conclude that Appellant concealed evidence as that term is used in Section 37.09. Appellant threw clear plastic bags containing methamphetamine out of the window of a car that was being pursued by Agent Adames as he attempted to stop the car. Agent Adames did not maintain visual contact of the discarded bags as evidenced by the fact that, after officers were able to stop the Honda driven by Pace, Agent Adames had to return to the area where Appellant dropped the bags. While the pursuit occurred during daylight, Agent Adames testified that the bag weighed less than one gram. He also testified that he believed that the wind may have moved the bag before he recovered it.
In some respects, the facts in this case are similar to the facts in Gaitan v. State, a case we cited in Hines. See Gaitan v. State, 393 S.W.3d 400, 401-02 (Tex. App.—Amarillo 2012, pet. ref'd). The police officers in Gaitan observed the defendant discard a metal object at night. Id. at 401. The officers eventually found the object, which turned out to be a gun. Id. As we noted in Hines, "[b]ecause law enforcement did not maintain visual contact with the gun and had to search for it after the defendant threw it away, a rational juror could have inferred that the defendant temporarily concealed the gun." 535 S.W.3d at 110 (citing Gaitan, 393 S.W.3d at 402).
As in Gaitan, a rational jury could have inferred that Appellant concealed the methamphetamine because officers did not maintain visual contact with it but, rather, had to search for it after Appellant threw it out the window of a car that was being pursued by the police. Accordingly, Appellant's conviction for tampering with evidence was supported by sufficient evidence. We overrule Appellant's sole issue.
This Court's Ruling
We affirm the judgment of the trial court.
As noted previously, Appellant only appealed his conviction for tampering with evidence.
JOHN M. BAILEY
CHIEF JUSTICE July 16, 2020 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.