Opinion
06-21-00029-CR
04-01-2022
ROBERT CURRY GOLATT, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: January 25, 2022
On Appeal from the 5th District Court Bowie County, Texas Trial Court No. 18F0972-005
Before Morriss, C.J., Stevens and Carter, [*] JJ.
MEMORANDUM OPINION
Scott E. Stevens Justice
A jury convicted Robert Curry Golatt of the third-degree-felony offense of tampering with or fabricating physical evidence and assessed punishment at confinement in the Texas Department of Criminal Justice for a period of eight years. On appeal, Golatt claims that the evidence was legally insufficient to support his conviction. Because we disagree, we affirm the trial court's judgment.
See Tex. Penal Code Ann. § 37.09(d)(1) (Supp.).
I. Background
As Officer Cliff Harris of the Texarkana, Texas, Police Department was patrolling the Rosehill neighborhood in July 2018, he spotted a vehicle parked in a section of woods off Peach Street. Knowing that a stolen vehicle had been recovered in that area, Harris sought to detain the vehicle. After Harris activated his emergency equipment to conduct a traffic stop, the vehicle drove several more blocks before it eventually turned into an apartment complex on Peach Street.
As Harris approached the vehicle, the driver had his registration and insurance card out as if he were prepared for a traffic stop. Harris and other officers who arrived to assist released the vehicle passenger from the scene and determined that Golatt was the driver. Because Golatt was arrested for evading arrest or detention with a motor vehicle, Harris read him his Miranda warnings. Golatt admitted that he was driving the car and that he was the person sitting in the car in the wooded area. Officer Jeremy Sutton of the Texarkana, Texas, Police Department searched Golatt before transporting him to jail.
The jury acquitted Golatt of this charge.
See Miranda v. Arizona, 384 U.S. 436 (1966).
The vehicle belonged to Golatt and had not been stolen.
Harris was present during Sutton's search and observed that Sutton found a red jewelry bag, like a small Ziploc bag, stuck in the back of Golatt's throat. Harris explained that these "jewelry bags" are commonly used to transport narcotics and that the bag in this case contained a residue on the inside. Sutton also testified that, based on his training and experience, the type of baggie found in Golatt's mouth was "a common method used to package and carry narcotics." Harris believed that, at one point, the baggie contained a controlled substance. According to Harris, a "very tiny amount [of what he believed to be] narcotics" was in the baggie, but that substance was not field tested. Harris explained that, if he tested for the wrong substance, there would be nothing left to test to determine if the residue was a different substance. Harris did not believe the laboratory would test the substance since Golatt was not arrested for possession of narcotics. Although Harris and Sutton believed the baggie contained methamphetamine, it could have been cocaine or crushed up pills.
Sutton testified that, based on the packaging and appearance, he believed the substance inside the baggie was methamphetamine.
Harris did not see Golatt put the baggie into his mouth and did not find any drugs or drug paraphernalia in Golatt's vehicle. Golatt could not have put the baggie in his mouth after he exited his vehicle because he was immediately handcuffed.
After the baggie was discovered, Harris asked Golatt if he was "trying to eat the dope." Harris could not understand Golatt's response. Harris asked him if he "ever chewed any dope, " and Golatt responded, "'Not much,' or something along those lines." At a different point in the conversation, Golatt told Harris that he did not ingest any drugs. Sutton observed, though, that Golatt's tongue was lined with a white residue.
Golatt indicated that he fled from Harris "to get rid of it." Harris understood this to mean that Golatt fled in order to get rid of the narcotics in his mouth. In Harris's opinion, Golatt was actively trying to destroy the baggie, because it contained teeth marks and was located in the back of Golatt's throat. Before the baggie was discovered, Harris was confused about why Golatt fled since he did not have any outstanding warrants and was not driving a stolen car. To Harris, the discovery of the baggie explained Golatt's reluctance to stop.
Harris charged Golatt with tampering with physical evidence because he was actively trying to destroy a baggie that had residue inside, which led him to believe that the baggie contained narcotics.
II. The Evidence Was Legally Sufficient to Support the Conviction
A. Standard of Review
"In assessing the legal sufficiency of the evidence, the reviewing court considers all of the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." Dean v. State, 449 S.W.3d 267, 268 (Tex. App.-Tyler 2014, no pet.); see Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.-Texarkana 2019, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "Our rigorous [legal sufficiency] review focuses on the quality of the evidence presented." Williamson, 589 S.W.3d at 297 (citing Brooks, 323 S.W.3d at 917-18 (Cochran, J, concurring)). "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007))).
"Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Id. at 298 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The 'hypothetically correct' jury charge is 'one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240).
"In our review, we consider 'events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.'" Id. at 297 (quoting Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985))). "It is not required that each fact 'point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.'" Id. (quoting Hooper, 214 S.W.3d at 13).
B. Analysis
A person commits the offense of tampering with evidence "if . . . knowing that an offense has been committed, [he] . . . alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation or official proceeding related to the offense." Tex. Penal Code Ann. § 37.09(d)(1). Here, the State alleged that Golatt "did then and there, knowing that an offense had been committed, namely possession of a controlled substance, intentionally or knowingly alter, destroy or conceal an object, to wit: plastic baggie containing a white residue, with intent to impair its availability as evidence in any subsequent investigation or official proceeding related to the offense."
A generous reading of Golatt's brief leads us to conclude that his initial argument claims that insufficient evidence supports his tampering conviction because there is no proof that the baggie recovered from his person contained a controlled substance. Although Golatt was not charged with possession of a controlled substance, "[k]nowledge that an 'offense' was committed is an element under penal code subsection 37.09(d)(1)." Stahmann v. State, 548 S.W.3d 46, 67 (Tex. App.-Corpus Christi 2018), aff'd, 602 S.W.3d 573 (Tex. Crim. App. 2020); see Tex. Penal Code Ann. § 37.09(d)(1). In this case, the indictment charged that Golatt knew that the offense committed was that of possession of a controlled substance.
"[W]hen the quantity of a substance possessed is so small that it cannot be measured, there must be evidence other than mere possession to prove that the defendant knew the substance in his possession was a controlled substance." King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (quoting Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim. App. [Panel Op.] 1979)). Here, there is ample evidence for the jury to have concluded, beyond a reasonable doubt, that Golatt knew that such offense had been committed. See Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper, 214 S.W.3d at 9) (circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor and alone may be sufficient to establish guilt). Both Harris and Sutton testified that the "jewelry bag" found in Golatt's throat was of a type commonly used to package, carry, and transport narcotics. In addition, Sutton observed that Golatt's tongue was lined with a white residue, the baggie contained a tiny amount of what the officers believed was methamphetamine, the baggie contained teeth marks and was located in the back of Golatt's throat, and Golatt indicated that he fled from Harris "to get rid of it," which Harris understood to mean to get rid of the baggie. From this evidence, a rational jury could infer, beyond a reasonable doubt, that Golatt knew that he had committed an offense, i.e., possession of a controlled substance. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (jury's role is to "fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts").
Golatt maintains that possession of a controlled substance is not an offense. Chapter 481 of the Texas Health and Safety Code is entitled the Texas Controlled Substances Act. See Tex. Health & Safety Code Ann. § 481.001. Chapter 481 defines a controlled substance as "a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group 1, 1-A, 1-B, 2, 2-A, 3, or 4." Tex. Health & Safety Code Ann. § 481.002(5) (Supp.). Sections 481.115 through 481.118 of the Texas Health and Safety Code define as offenses possession of substances in the Penalty Groups listed in Section 481.002. See Tex. Health & Safety Code Ann. §§ 481.115-118 (Supp.).
Golatt next contends that the evidence is insufficient to support his tampering conviction because there is no evidence that he was "carrying cocaine in his mouth to impair its availability as evidence." In support of this contention, Golatt relies on Hollingsworth v. State, 15 S.W.3d 586 (Tex. App.-Austin 2000, no pet.).
In Hollingsworth, an officer reported to an area in which a knife fight had been reported. Id. at 589. When the officer arrived, he observed Hollingsworth walking down the street. Because the officer believed Hollingsworth might have been involved in the fight, he followed Hollingsworth in his marked patrol car. Id. at 589-90. Eventually, the officer got out of his car and asked Hollingsworth to stop. Id. at 590. Hollingsworth turned and looked at the officer but continued to walk away. Hollingsworth then "made a quick and furtive movement towards" a nearby dumpster, and the officer saw Hollingsworth "making a motion with his tongue in his mouth." Hollingsworth ducked his head and shoulder behind the dumpster and emerged a few seconds later. Id. Another officer on the scene was able to see Hollingsworth spit out two cube-shaped objects behind the dumpster, which he suspected was cocaine. Id. Hollingsworth was convicted of tampering with physical evidence and possession of cocaine. Id. at 591. The Austin court agreed with Hollingsworth's argument that there was insufficient evidence that he concealed cocaine from the officers. Id. at 595.
The Austin court recognized and utilized the trial court's dictionary definition of "conceal" as "[t]o hide or keep from observation, discovery, or understanding; keep secret." Id. In applying that definition, the court observed that there was no evidence that Hollingsworth was carrying cocaine in his mouth with the intent to impair its availability as evidence. In other words, nothing in the evidence showed that Hollingsworth saw the police officers and then put the cocaine into his mouth in order to conceal it from them. Id. Instead, one of the officers saw Hollingsworth spit the cocaine out of his mouth, thus exposing it to view. Id. On those facts, the Austin court determined that there was legally insufficient evidence of concealment. Id.
This case is easily distinguished from Hollingsworth. Where, in Hollingsworth, the defendant spit cocaine out of his mouth, thus exposing it to view, id., Golatt concealed the baggie in his throat, thus hiding it from view. Yet, Golatt claims there is no evidence that he saw police officers and then put the baggie in his mouth to conceal it from view. The import of this argument is that Golatt was merely transporting the baggie in his mouth. The evidence here shows, on the contrary, that Golatt placed the baggie in his mouth to impair its availability as evidence. Golatt delayed in pulling over after Harris activated his emergency equipment and did not offer up the baggie to the officers or otherwise attempt to spit it out. Instead, the baggie was only discovered when Sutton searched Golatt's mouth in preparation for transport to jail. Golatt then indicated that he fled from Harris "to get rid of" the baggie, which was hidden in his throat. From this evidence, a rational jury could conclude that Golatt concealed the baggie with the intent to impair its availability as evidence. See Stahmann, 602 S.W.3d at 573 ("[a]ctual concealment requires a showing that the allegedly concealed item was hidden, removed from sight or notice, or kept from discovery or observation" (alteration in original) (quoting Stahmann, 548 S.W.3d at 57)).
Sparks v. State, No. 06-20-00014-CR, 2020 WL 3865373 (Tex. App.-Texarkana July 9, 2020, no pet.) (mem. op., not designated for publication), is analogous to this case. During a traffic stop, a police officer noticed that Sparks was "chewing on something or hiding something under his tongue." Id. at *1. After Sparks attempted to swallow the object, he pulled the bag out of his mouth and held it out the driver's window. Id. The bag contained a small amount of white substance, and Sparks had white reside on the walls of his mouth and tongue. Id. The testimony showed that "[t]he bag was 'pretty messed up'" and contained only trace amounts of cocaine. We concluded, in viewing the evidence in the light most favorable to the jury's verdict, that "a rational jury could have found beyond a reasonable doubt that Sparks had swallowed cocaine." Id. at 3. As a result, "the State was unable to determine the actual weight of the cocaine he possessed, hence reducing the evidentiary value of the cocaine" and impairing its availability as evidence. Id. (quoting Dooley v. State, 133 S.W.3d 374, 379 (Tex. App.-Austin 2004, pet. ref'd)).
We may rely on the guidance and persuasiveness gleaned from unpublished opinions, regardless of their lack of precedential value. See Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.-Amarillo 2003, pet. ref'd) (noting the effect of the change in Rule 47.7 that unpublished opinions are not binding but may serve as "an aid in developing reasoning that may be employed by the reviewing court").
Likewise, in this case, the evidence revealed that only a small amount of white substance remained in the baggie-which was covered in teeth marks-after it was recovered from Golatt's throat. As in Sparks, Golatt's tongue was covered in a white substance. This evidence indicates that Golatt swallowed some amount of the white substance contained in the baggie, thereby reducing its evidentiary value and impairing its availability as evidence. When we view the totality of the evidence in the light most favorable to the jury's verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Golatt intentionally or knowingly altered, destroyed, or concealed the plastic baggie containing white residue with intent to impair its availability as evidence in any subsequent investigation.
"Alter" is not defined by statute but may be commonly understood to mean "to change; make different; modify." Williams v. State, 270 S.W.3d 140, 146 (Tex. Crim. App. 2008) (quoting Alter, Webster's Unabridged Dictionary (2nd ed. 1983)). "Destroy is defined as 'ruined and rendered useless[.]'" David v. State, 621 S.W.3d 920, 925 (Tex. App.-El Paso 2021, pet. granted).
As a result, we find the evidence legally sufficient to support the jury's finding of guilt.
III. Conclusion
We affirm the trial court's judgment.
[*]Jack Carter, Justice, Retired, Sitting by Assignment