No. 10-03-00080-CR
Opinion delivered and filed October 27, 2004. DO NOT PUBLISH.
Appeal from the 77th District Court, Limestone County, Texas, Trial Court # 9857-A. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
BILL VANCE, Justice.
Appellant, Timothy Deleon Thomas, was convicted of tampering with or fabricating physical evidence. TEX. PEN. CODE ANN. § 37.09 (Vernon 2003). He was sentenced to ten years' confinement. On appeal, he argues that the trial court erred by denying his motion to suppress and that the evidence was legally and factually insufficient. We will overrule his issues and affirm the judgment.
BACKGROUND
Officer Thompson testified that on May 4, 2002 an informant told him about a cocaine purchase that the informant had just witnessed. The informant showed him the location of the transaction and gave him a description of one of the participants. Thompson went to the home where the transaction allegedly occurred. The owner of the home verified that someone matching the description given by the informant had been at the home. With the owner's consent, Thompson searched the home and found plastic bags containing white residue. He left the house and found Thomas, who fit the description Thompson had been given. He confronted Thomas, patted down his outer clothing, and questioned him. Believing Thomas had something in his mouth, Thompson ordered him to open his mouth. Thomas refused and began chewing and trying to swallow. A fight ensued as Thompson arrested Thomas. Thomas was taken to the hospital where his stomach contents were pumped and saved. Lab tests showed the presence of cocaine. Motion to Suppress
Thomas claims that the trial court erred in denying his motion to suppress the arrest and evidence seized and tested in connection with the arrest. In reviewing a ruling on a motion to suppress evidence, we afford almost total deference to a trial court's determination of historical facts that the record supports, especially when the court's fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We afford the same amount of deference to the court's rulings on application of law to fact questions, known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. We review " de novo" mixed questions of law and fact not falling into this category. Id. The State does not contend that the officer had a warrant for the arrest or for the search that followed, nor does the State claim that these activities occurred with Thomas's consent. Without a warrant, the State carries the burden of establishing the validity of the arrest. Stull v. State, 772 S.W.2d 449, 453 (Tex.Crim.App. 1989); Russell v. State, 717 S.W.2d 7, 10 (Tex.Crim.App. 1986). A police officer is generally justified in briefly detaining an individual on less than probable cause for the purposes of investigating possible criminal behavior where the officer can point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). Although Thomas does not question that the alleged cocaine sale was a suspicious activity and that he was connected with that activity, he argues that his arrest was illegal because there was nothing linking him to a crime being currently committed and that the information connecting him with the illegal activity was "stale" at the time of his arrest. According to Officer Thompson's testimony, he encountered Thomas within one hour of being told by the informant about the cocaine sale. Because the officer reasonably stopped Thomas on an articulable suspicion that he was engaged in drug trafficking, we reject Thomas's argument. We overrule this issue. Legal and Factual Insufficiency
Thomas argues that the evidence was legally and factually insufficient to support the verdict. We review the legal sufficiency of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 199 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). The judgment may not be reversed unless the finding of guilt is irrational or unsupported by proof beyond a reasonable doubt. Henley v. State, 98 S.W.3d 732, 735 (Tex.App.-Waco 2003, pet. ref'd). We review factual sufficiency by examining all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. April 21, 2004). A person commits the offense of tampering with evidence 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. PEN. CODE ANN. § 37.09(a)(1). Thomas argues (1) that the officer never saw what was in Thomas's mouth, (2) that the cocaine found in his stomach could have been the result of his snorting cocaine earlier, and (3) that there were no plastic bags in his stomach contents. However, the officer testified that Thomas had bulges in both cheeks and that his voice was muffled and his speech slurred. The emergency room physician testified that it was unlikely that the cocaine in Thomas's stomach could have come from snorting powder cocaine. The officer testified that the information he was acting upon was that Thomas had sold crack, not powdered, cocaine. The State's toxicologist testified that she could not tell from the stomach contents what form — powder or crack — the cocaine had initially taken. Considering all of the evidence, the jury could rationally have found beyond a reasonable doubt that Thomas had swallowed cocaine with intent to impair its availability in the investigation. The evidence is legally sufficient. Considering all of the evidence in a neutral light, we cannot say that the evidence supporting the verdict is too weak to support the verdict. Zuniga, 2004 WL 840786, at *7. Nor can we say that the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. The evidence is factually sufficient. We overrule these issues. CONCLUSION
Having overruled the issues, we affirm the judgment.