Opinion
NUMBERS 13-14-00486-CR
06-30-2016
GERARDO HERNANDEZ A/K/A GARY HERNANDEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes and Longoria
Memorandum Opinion by Justice Perkes
Appellant Gerardo Hernandez, a/k/a Gary Hernandez, was indicted for the offense of tampering with physical evidence, a third-degree felony enhanced to a second-degree felony by appellant's prior felony conviction. See TEX. PENAL CODE ANN. §§ 12.42, 37.09 (West, Westlaw through 2015 R.S.). Following a bench trial, the trial court found appellant guilty and sentenced him to two years' imprisonment. By one issue, appellant argues the evidence was legally insufficient to support his conviction. We affirm.
I. BACKGROUND
Appellant was indicted for tampering with physical evidence by knowingly concealing drug paraphernalia—a crack pipe and brillo pad—with the intent to impair its availability as evidence.
Officer Christopher Meer with the Corpus Christi Police Department was the State's sole witness at trial. Officer Meer testified that he was on routine patrol around 1:30 a.m. when he initiated a traffic stop after observing an individual fail to signal before making a turn. During the traffic stop, Officer Meer asked the passenger, who was later identified as appellant, to exit the vehicle. As he was approaching the passenger side, Officer Meer saw appellant "open the passenger door and I see his hand drop down to the . . . runner on the vehicle and that's when I got around . . . the trunk of the vehicle, contacted him and pulled him back to the trunk." Officer Meer stated that, "[a]s soon as his hand dropped, I figured he had dropped something."
After appellant exited the vehicle, Officer Meer approached the passenger side and, using his flashlight, observed a brillo pad and crack pipe underneath the "front passenger compartment." Officer Meer also discovered a "thin metal rod" in appellant's pocket after performing a pat-down search. Officer Meer explained that "the little space between the end of the tube and the brillo is normally where the rock of crack cocaine is placed[,]" and that the metal rod is used to push out and replace the brillo pad.
The trial court admitted video from the vehicle's dash camera depicting the traffic stop. The video shows that the traffic stop occurred at night and that Officer Meer was using his flashlight when he discovered the drug paraphernalia. Video from inside the patrol car was also admitted into evidence. Appellant can be heard on the video saying, "I should have thrown it forward. Why didn't you throw it forward, you dumbass?"
The trial court found appellant guilty. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By his sole issue, appellant argues "the evidence is [insufficient] to support the conviction for tampering with evidence [by concealment]" because "the evidence was found in plain sight in a matter of seconds by the officer[.]"
A. Standard of Review and Applicable Law
"The standard for determining whether the evidence is legally sufficient to support a conviction is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original); see Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010) (plurality op.). The fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is within the fact-finder's exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). We resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State, 767 S.W.2d 769, 776 (Tex. Crim. App. 1989) (en banc).
We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a 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. This standard applies to evidence presented in a bench trial as well as to cases tried to a jury. Malik, 953 S.W.2d at 240. Because the hypothetically correct charge is one "authorized by the indictment," "if the State pleads one specific element from a penal offense that contains alternatives for that element, the sufficiency of the evidence is measured by the element that was actually pleaded, not any other statutory alternative element." Cada, 334 S.W.3d at 773-74.
There are three elements that define the offense of tampering with physical evidence: (1) knowing an investigation or official proceeding is pending or in progress; (2) a person alters, destroys, or conceals any record, document, or thing; and (3) with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding. Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008). Here, the State's indictment alleged that appellant committed the offense by concealing "drug paraphernalia[—]a crack pipe and brillo pad."
B. Analysis
The Penal Code does not statutorily define "conceal." In the absence of statutory definitions, "we turn to the common, ordinary meaning of that word." Olivas v. State, 203 S.W.3d 341, 345 (Tex. Crim. App. 2006); see also TEX. GOV'T CODE ANN. § 311.011(a) (West, Westlaw through 2015 R.S.) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."). As used in section 37.09 of the Penal Code, courts have held that "conceal" means "[t]he act of removing from sight or notice; hiding." See Rotenberry v. State, 245 S.W.3d 583, 588-89 (Tex. App.—Fort Worth 2007, pet. ref'd) (quoting BLACK'S LAW DICTIONARY 306 (8th ed. 2004)); Hollingsworth v. State, 15 S.W.3d 586, 595 (Tex. App.—Austin 2000, no pet.); see also Hollins v. State, No. 01-14-00744-CR, 2015 WL 5076298, at *5 (Tex. App.—Houston [1st Dist.] Aug. 27, 2015, pet. ref'd) (mem. op., not designated for publication).
Appellant relies on Hollingsworth in support of his argument that evidence found in plain sight does not constitute concealment. 15 S.W.3d at 590. In Hollingsworth, officers observed the defendant spit crack cocaine from his mouth. Id. The Austin Court of Appeals held that the evidence was not legally sufficient to support a conviction because the defendant's act of spitting out the crack cocaine placed the evidence in plain view of the officers. Id. at 595. The court stated that "the evidence shows that appellant was carrying cocaine in his mouth because that is how crack cocaine is commonly carried, undoubtedly to keep it from plain view." Id. The court went on to conclude that "[t]here is no evidence that appellant saw the police officers and then put the evidence into his mouth in order to hide it from them." Id.
Hollingsworth is inapposite because Officer Meer observed appellant placing items under the car. We further disagree with appellant that the drug paraphernalia was merely found in "plain sight." Viewing the evidence in the light most favorable to the prosecution, appellant, as Officer Meer was walking toward the passenger side of the vehicle, appeared to secret the crack pipe and brillo pad by placing them underneath the passenger compartment of the vehicle. Officer Meer observed appellant attempting to hide something, and was thereafter able to locate the items when he shined his flashlight in the area where he observed appellant make the furtive gesture. Rather than exposing the evidence to Officer Meer, appellant acted to remove the items from sight. See Rotenberry, 245 S.W.3d at 588-89.
Under these circumstances, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant "concealed" drug paraphernalia. See Johnson, 364 S.W.3d at 293-94. Therefore, the evidence is legally sufficient to support a conviction for tampering with physical evidence.
We overrule appellant's sole issue.
III. CONCLUSION
We affirm the judgment of the trial court.
GREGORY T. PERKES
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 30th day of June, 2016.