Opinion
05-22-00168-CR 05-22-00169-CR
02-22-2023
LEE ROY CHANY, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b) 220168F.U05
On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F20-39327-P, F20-39331-P
Before Justices Molberg, Reichek, and Breedlove
MEMORANDUM OPINION
AMANDA L. REICHEK JUSTICE
Lee Roy Chaney appeals his convictions for tampering with physical evidence and possession of a controlled substance. Appellant contends the evidence is insufficient to prove (1) he knew an investigation was in progress, (2) he altered, destroyed, or concealed the evidence in question, and (3) the quantity of methamphetamine he possessed was one gram or more. We affirm the trial court's judgments.
Background
On September 14, 2020, police officers Zachary Beauchamp and Corbin Phillips were patrolling a high crime area in Lancaster, Texas. During the course of their patrol, they pulled over a car for having expired registration and a license plate belonging to a different vehicle. Appellant was a passenger in the car.
While Officer Beauchamp was speaking to the driver, Officer Phillips observed appellant place a large white Styrofoam cup with a lid in the passenger side cup holder. Shortly thereafter, Officer Beauchamp obtained permission from the driver to search the vehicle. During the search, Officer Beauchamp removed the lid from the cup in the passenger's side cup holder and observed it contained red liquid with ice cubes and a crystalline substance, a small, clear baggie, also with a crystalline substance in it, and a glass pipe of the type used to smoke drugs. Appellant stated the pipe was an incense burner and he had pain medication for his foot.
The officers arrested appellant and performed a field test on the liquid in the cup. The field test showed the presence of methamphetamine. Appellant was subsequently charged with tampering with or fabricating physical evidence and possession of a controlled substance.
At trial, Augustus Garcia, an analyst at the Garland crime lab, testified he ran multiple tests on the red liquid seized by officers Beauchamp and Phillips. According to Garcia, all the tests indicated the presence of methamphetamine.
Garcia further testified the weight of the red liquid was 502.8 grams. Garcia did not test for the "purity" of the liquid and, therefore, did not analyze what proportion of the liquid was methamphetamine and what proportion was adulterants or dilutants. After hearing the evidence, the jury found appellant guilty of tampering with physical evidence and possession of a controlled substance "in an amount by aggregate weight including any adulterants or dilutants of 1 gram or more but less than 4 grams." The trial court sentenced appellant to two years in prison for each charge. This appeal followed.
Analysis
When reviewing a challenge to the sufficiency of the evidence supporting a criminal conviction, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). We do not resolve conflicts of fact, weigh evidence, or evaluate the credibility of the witnesses as this is the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead we determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the adjudication. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992). The factfinder is the sole judge of the witnesses' credibility and their testimony's weight. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984). The factfinder may choose to disbelieve all or any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Each fact need not point directly and independently to the guilt of the appellant as long as the cumulative force of all the incriminating circumstances is enough to warrant conviction. See Kennemur v. State, 280 S.W.3d 305, 313 (Tex. App.-Amarillo 2008, pet. ref'd). Circumstantial evidence is as probative as direct evidence and can be sufficient alone to establish an accused's guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). We review all of the evidence in the case regardless of whether it was erroneously admitted. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). "A court's role on appeal is restricted to guarding against the rare occurrence when the factfinder does not act rationally." Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018).
Under section 37.09 of the Texas Penal Code, a person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he alters, destroys, or conceals any record, document, or thing 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). Appellant contends the evidence is insufficient to show he "knew there was a drug investigation going on when he put his methamphetamine and pipe in his cup of [soda]." Appellant argues the State proved only the existence of a traffic investigation and, therefore, failed to show appellant knew he was being investigated for a drug offense when he immersed the evidence in the liquid in the cup. Appellant's argument is misplaced.
To commit an offense under section 37.09, the evidence that was tampered with need not match or pertain to the investigation in progress. Williams v. State, 270 S.W.3d 140, 145 (Tex. Crim. App. 2008). Appellant does not dispute that, at the time he placed the drugs and pipe in the cup of liquid, he knew there was a pending police investigation. It is of no consequence that the investigation was for a traffic violation rather than a drug offense. Lemarr v. State, 487 S.W.3d 324, 329 (Tex. App.-Amarillo 2016, no pet.); see also Williams v. State, No. 05-16-00877-CR, 2017 WL 5150846, at *2 n. 2 (Tex. App.-Dallas Nov. 7, 2017, pet. ref'd) (mem. op., not designated for publication). Nor is it of any consequence that appellant was not the driver of the car. Lemarr, 487 S.W.3d at 326. It is sufficient that the State showed appellant tampered with the evidence when he knew an investigation was in progress. Williams, 270 S.W.3d at 145.
Appellant next contends the evidence was insufficient to show he altered, destroyed, or concealed the methamphetamine. Appellant acknowledges that proof of any one of these forms of tampering is enough to support the conviction. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). The term "alter" is generally defined to mean "to make different in some particular, as size, style, course, or the like; modify." David v. State, No. PD-0307-21, 2022 WL 1548023, at *4 (Tex. Crim. App. May 11, 2022). The court of criminal appeals has recognized that "altered" has "an expansive meaning." Id.
Appellant argues there is no evidence to show he altered the methamphetamine because the drug "could have been snorted, smoked, injected, or drunk to the same, or similar intoxicating effect." Even assuming there was evidence to support this assertion, it is not necessary that appellant change the chemical composition of the drug, or succeed in impairing its evidentiary value to "alter" it as contemplated by the statute. Id. It is enough that the State showed that appellant's actions caused the methamphetamine to become inseparably combined with the liquid in the cup. Id. (marijuana "altered" when it became inseparably combined with water and waste in toilet). The jury could reasonably conclude that appellant intended to impair the availability of the drug as evidence by combining the methamphetamine with liquid to change its nature and quality. Id.
Finally, appellant contends the evidence is insufficient to show the quantity of methamphetamine he possessed was one gram or more. Appellant argues that, because the State's chemist did not determine the purity of the liquid in his cup, the State presented no evidence to show the quantity of drugs in his possession. But the State was not required to prove the weight of the methamphetamine alone.
In Texas, a controlled substance includes any adulterants and dilutants. Tex. Health & Safety Code Ann. § 481.002(5). To show the amount of controlled substance possessed by a defendant, the State need only prove that the aggregate weight of the mixture containing the controlled substance equals or exceeds the alleged minimum weight. Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2003). "Any substance that is added to or mixed with a controlled substance, regardless of when, how, or why that substance was added, may be added to the aggregate weight of the controlled substance as an adulterant or dilutant." Wright v. State, 201 S.W.3d 765, 769-70 (Tex. Crim. App. 2006) quoting Seals v. State, 187 S.W.3d 417, 420 (Tex. Crim. App. 2005). In this case, the State proved the aggregate weight of the liquid containing the methamphetamine was over five hundred grams. This far exceeds the minimum of one gram necessary to sustain appellant's conviction.
We resolve appellant's issues against him and affirm the trial court's judgments.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.