Nos. 05-09-00342-CR, 05-09-00343-CR, 05-09-00344-CR.
Opinion Filed August 17, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 15th District Court, Grayson County, Texas, Trial Court Cause Nos. 057220-15, 057221-15, 057222-15.
Before Justices O'NEILL, FRANCIS, and MURPHY.
Opinion By Justice MURPHY.
In these appeals, Bradley Edd Howell challenges the sufficiency of the evidence to support his convictions for evading arrest, possession of methamphetamine in an amount of four grams or more but less than 200 grams, and tampering with physical evidence with the intent to impair. We affirm.
Background
The trial was before the court and consisted solely of the testimony of Errin Luton and Matthew Otwell, narcotics investigators with the Grayson County Sherriff's Office. Luton testified he was working drug interdiction on Highway 75 in an unmarked truck when he observed Howell driving a truck with no license plate. When Howell's truck "cross[ed] over the outside fall line," Luton activated his emergency lights and siren and stopped Howell. Luton approached on the passenger side of Howell's truck and identified himself as a peace officer. Luton was wearing plain clothes but had his badge displayed on his chest and his gun visible in a side holster. After obtaining Howell's driver's license and explaining to Howell the reason for the stop, Luton returned to his truck for a warrant check and to call for assistance from an officer in a marked unit. While waiting to hear if Howell had any outstanding warrants, Luton noticed Howell motioning him to return. As Luton started walking towards him, Howell started the engine of his truck. Howell was looking out the driver's side window and asked Luton if he was a "real cop." Howell stated he was on the phone with his mother who was saying he should drive to the police department because she did not think Luton was an officer. Luton explained to the court that officer impersonator complaints had been made recently. Luton told Howell that he was a "real cop" and provided Howell his badge number. Luton did not show Howell any other "official identification," but told Howell another officer in a marked unit would be arriving shortly. Luton tried to "calm [Howell] down" and told him to "hold tight," but Howell said he would not "hang[] around." Howell then drove away. Luton pursued him, remaining probably ten or twenty feet behind Howell's truck. At some point, Luton was assisted by Otwell, who was traveling in the opposite direction. Otwell was in a marked car and had activated his lights and siren. Otwell stopped his car, exited, and signaled Howell to stop. Howell did not comply, and Luton continued the pursuit. Moments later, Howell turned into an alley, accelerated, and "threw mud all over the front of [Luton's] truck." The alley led to the parking lot of the sheriff's office. Howell stopped in the parking lot and was arrested. Luton searched Howell's truck following the arrest and found several La Quinta hotel room keys; a bottle cap with a hole drilled through it, commonly used in the manufacturing of methamphetamine; and a blue money bag inside a larger black bag. Inside the money bag were a yellow cut pen with a white residue on it; a bag containing a white crystalline substance; a metal spoon also with white residue on it; a pair of brass knuckles; and several zip-lock style baggies. The baggies had white labels, "07V1" typed in the right hand corner, a serial number beginning with "060" typed in the left hand corner, and bar codes. Luton wanted to search the pursuit area next, to see if Howell had thrown any contraband from his truck during the pursuit. Because it had started raining and was getting dark, Luton conducted this search the following morning. The search yielded a black box. The box was found in the alley and contained a La Quinta hotel key with the same telephone number as at least one of the keys found in the truck, smoking pipes, a small baggy of marijuana, digital scales, and a baggy containing red phosphorus-a substance used in the manufacture of methamphetamine. The box also contained several baggies with labels marked similarly to the ones found in the truck -"07V1" in the right hand corner and a serial number beginning with "060" in the left hand corner. Two of these baggies contained a combined total of more than ten grams of methamphetamine. Luton testified all the items were wet, and he was unable to lift any fingerprints. The similarity between the items found in the truck and in the black box led Luton to conclude the black box was thrown from Howell's truck. Luton admitted he did not actually see Howell throw anything from his truck, but stated it was "hard" for him to see after the mud was splattered on his truck. Luton also admitted the items in the box were not "out of sort" despite landing on a piece of wood and being thrown from a window of a truck traveling twenty to thirty miles per hour. Luton testified the pursuit area had not been blocked off overnight and he could not "without a doubt" tell the court that the box had not been touched or tampered with by others during the overnight period. Otwell also testified and described his role in the pursuit. He testified that Howell's driver's side window was down as Howell passed by him. Following the convictions, the trial court assessed punishment at two years for evading arrest or detention and an enhanced punishment of twenty years for each of the other two offenses. Discussion Standard of Review
We review challenges to the sufficiency of the evidence under well-known standards. In reviewing a legal sufficiency challenge, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We review the evidence in the light most favorable to the verdict and defer to the fact finder's weight determinations. Id. In a factual sufficiency review, we consider all the evidence in a neutral light. Id. at 518. Although we defer to the fact finder's findings concerning credibility, we may override the verdict to "prevent manifest injustice." Id. at 518, 525. We will conclude the evidence is factually insufficient if (1) the supporting evidence is "too weak" to support the fact finder's verdict or (2) considering conflicting evidence, the fact finder's verdict is against the great weight and preponderance of the evidence. Id. at 518. If we conclude the evidence is factually insufficient, we must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly outweighs the verdict. Id. Evading Arrest
The State charged Howell with evading arrest by intentionally, while using a vehicle, fleeing from Luton and Otwell, persons Howell knew were peace officers attempting lawfully to arrest or detain him. See Tex. Penal Code Ann. § 38.04(b)(1)(B) (Vernon Supp. 2009). Howell challenges only the factual sufficiency of the evidence to support this conviction. Specifically, he complains of the evidence proving his requisite knowledge with respect to Luton, arguing his leaving the scene of the traffic stop was reasonable because an officer impersonator had been reported and Luton was in plain clothes and driving an unmarked car. The record reflects, however, that when Howell expressed his concern to Luton, Luton confirmed he was a peace officer, gave his badge number, and told Howell to "hold tight" as another officer in a marked unit would be arriving shortly. Luton had his badge displayed on his chest and his gun visible in a side holster. Viewing the evidence in a neutral light, we cannot conclude this evidence is too weak to support the verdict or that the verdict is greatly outweighed by contrary evidence. We overrule Howell's factual sufficiency complaint. Possession and Tampering
We address the challenges to the possession and tampering convictions together because the evidence as to these offenses is intertwined. To establish Howell committed the offense of possession of a controlled substance, the State had to prove beyond a reasonable doubt that Howell knowingly and intentionally possessed methamphetamine in an amount of four grams or more but less than 200 grams. See Tex. Health Safety Code Ann. §§ 481.102(6), 481.115(d) (Vernon 2010). The State could establish possession with direct or circumstantial evidence that Howell exercised control, management, or care of the substance and knew the substance was contraband. See id. § 481.002(38); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The State did not need to prove exclusive control, but had to show Howell's connection with the methamphetamine was more than fortuitous. See Evans, 202 S.W.3d at 162. To establish Howell tampered with evidence with the intent to impair it, the State had to prove beyond a reasonable doubt that Howell, knowing he had committed the offense of possession of a controlled substance, intentionally or knowingly concealed the black box in which the methamphetamine was found with the intent to impair its verity or availability as evidence in any subsequent investigation or official proceeding related to the offense. See Tex. Penal Code Ann. § 37.09(d)(1) (Vernon Supp. 2009); Stewart v. State, 240 S.W.3d 872, 874 (Tex. Crim. App. 2007). Howell challenges both the legal and factual sufficiency of the evidence to support these convictions. He asserts insufficient links existed connecting him to the black box in which the methamphetamine was found and thus the State failed to meet its burden of proving Howell possessed the methamphetamine. And, because the State failed to prove possession, Howell argues it necessarily failed to prove the tampering offense. Howell also asserts the State failed to prove the tampering offense because Luton did not see Howell throw anything from his truck and the box had remained in an unsecured place overnight. Viewing the evidence in the light most favorable to the verdict, the record reflects Howell drove away from the scene of the stop in his truck after being told to wait, failed to stop when directed by Otwell, and drove into a muddy alley. As he drove down the alley, Howell flung mud onto Luton's truck, obstructing Luton's view. He then stopped in the parking lot of the sheriff's office. According to Otwell, Howell had been driving with his window down. A search of Howell's truck yielded several La Quinta hotel keys, items with white residue, and several baggies with white labels and certain identifying information. A search of the pursuit area, specifically the alley, yielded the box. The box contained the methamphetamine, other drug paraphernalia, a hotel key that matched keys found in Howell's truck, and baggies that were similarly marked to baggies found in Howell's truck. Additionally, the items were wet when found, consistent with Luton's testimony that it had rained the night before and from which the court could infer that the box had been left in the alley overnight. From this evidence, the court could find beyond a reasonable doubt that Howell's connection with the box and methamphetamine was more than fortuitous. The court could find beyond a reasonable doubt that Howell exercised control over the box and methamphetamine and knew the methamphetamine was contraband. Additionally, the court could find beyond a reasonable doubt from this evidence that knowing he possessed the methamphetamine, Howell intentionally concealed the box with the intent to impair its availability as evidence in future proceedings or investigations. We conclude the evidence is legally sufficient to support the possession and tampering convictions. We also conclude the evidence is factually sufficient. The evidence outlined above is neither too weak to support the convictions nor greatly outweighed by conflicting evidence. That Luton testified he did not see Howell toss anything from his car and that the pursuit area had not been blocked off overnight such that Luton could not testify with certainty that no one had tampered with the box went to the weight of the evidence and not the sufficiency. We therefore overrule Howell's legal and factual sufficiency points as to these convictions. Conclusion
Having overruled Howell's complaints, we affirm the trial court's judgments.