Juan Torres Rodriguez v. State ( 2016 )

NUMBER 13-15-00287-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JUAN TORRES RODRIGUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of
San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Justice Garza
A jury convicted appellant, Juan Torres Rodriguez, of possession of less than a
gram of cocaine, a state-jail felony offense, see TEX. HEALTH & SAFETY CODE ANN. §
481.115(a), (b) (West, Westlaw through 2015 R.S.), and tampering with physical
evidence, a third-degree felony offense. See TEX. PENAL CODE ANN. § 37.09(a)(1), (c)
(West, Westlaw through 2015 R.S.). The trial court sentenced him to eighteen months’
confinement on the possession charge and to six years’ confinement on the tampering
charge, with the sentences ordered to run concurrently. By a single issue, appellant
contends that the evidence is insufficient to support his conviction for tampering with
physical evidence. We affirm.
I. BACKGROUND
Aaron Putnam, a patrol sergeant with the Sinton Police Department, testified that,
around 11:30 p.m. on the evening of September 3, 2012, he observed appellant walking
toward an apartment complex in Sinton, Texas, with a beer in his hand. Officer Putnam
knew that appellant’s girlfriend lived at the apartment complex and that appellant had
been given a criminal trespass warning for the property because Officer Putnam had
arrested appellant for criminal trespass two days earlier, on September 1, on the same
property. Officer Putnam approached appellant and attempted to handcuff him.
Appellant resisted being handcuffed. The officer observed a baggie in appellant’s right
hand; when asked about the baggie, appellant turned away to block Officer Putnam’s
view of his hands. Officer Christian Martinez arrived and assisted in the arrest. Appellant
moved the contents of his right hand to his left hand and began clenching his left hand
rapidly “as if he was trying to grind something up.” The officers managed to pry the baggie
containing suspected crack cocaine from appellant’s hand.
On cross-examination, defense counsel asked Officer Putnam whether he knew
that the criminal trespass charge was dismissed; Officer Putnam responded that he did
not. Officer Putnam admitted that the officers struggled with appellant on the ground,
face-down, before they were able to pry the baggie from appellant’s hand.
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Officer Martinez testified that he responded to a backup call from Officer Putnam
on the night of the incident. When Officer Martinez arrived, appellant was already in
handcuffs, but was “fidgeting” with an item in his hands. The officers tried unsuccessfully
to retrieve the item from appellant’s hands. The officers placed appellant on the ground
and repeatedly instructed him to open his hands, but he refused. Officer Putnam struck
appellant’s left fist with his flashlight a few times; appellant finally opened his hand to
reveal the baggie containing the suspected cocaine. On cross-examination, Officer
Martinez stated that appellant was transported by EMS to a hospital for a few hours
because he was complaining of back pain.1 The State rested.
Delphino Bustamante testified for the defense. Bustamante testified that on the
night of September 1, 2012—two days before the incident at issue—he picked appellant
up and took him to obtain medication for Mary Reese, appellant’s girlfriend. On the return
trip, Officer Putnam turned on his lights and pulled the vehicle over. Bustamante stated
that the only place to pull over was the parking lot of the apartment complex. Officer
Putnam opened the rear passenger-side door where appellant was sitting and asked,
“Where are the drugs? Where are the drugs?” Officer Putnam pulled appellant out of the
car and arrested him for criminal trespassing. Bustamante said that the officer permitted
him to leave.
Reese testified that she has been appellant’s girlfriend since January 2010. When
she began seeing appellant, she was separated from her ex-husband, who was formerly
employed as a City of Sinton police officer. Reese testified that since she began seeing
1 The State also presented the testimony of Scott Roush, the detective that submitted the cocaine
evidence to the Texas Department of Public Safety Crime Lab, and the testimony of Natalia Sanchez, a
forensic scientist with the Texas Department of Public Safety Crime Lab in Laredo, Texas, who confirmed
that the substance in the baggie was cocaine.
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appellant, they have both been repeatedly harassed by Sinton police officers. She stated
that they have been stopped on numerous occasions. She stated that Officer Putnam
has followed her to the grocery store and followed her home. On another occasion,
Officer Putnam pulled her over because he claimed that she had an inoperative brake
light; Reese stated that the brake light was not out. On that occasion, Officer Putnam
searched her vehicle. Reese testified that she has not known appellant to use cocaine.
Reese stated that on the night of the incident, she met appellant outside her
apartment and they talked for a short while. Appellant walked with her back to her
apartment to ensure that she made it inside safely. As soon as appellant stepped onto
the driveway leading to the back parking lot, Officer Putnam rushed out and told appellant
he was under arrest for criminal trespassing. Reese watched as Officer Putnam
handcuffed appellant. Officer Putnam asked appellant what he had in his hands;
appellant opened his hands and his lighter fell out. Officer Putnam was very aggressive,
even though appellant was not resisting. Officer Martinez arrived. Appellant was moving
his hands around because the handcuffs were very tight. Officer Martinez said that
appellant had something in his hands. Both officers knocked appellant to the ground
face-down. Office Putnam had one leg on appellant’s back and began hitting him with
the flashlight, instructing him to open his hands. Appellant had his hands clenched.
Appellant called out to Reese, asking her to summon an ambulance because he
was in pain. Appellant had a history of back surgeries and was physically disabled.
Reese stated that she observed the entire incident and that neither officer ever said
anything about finding cocaine. Appellant sought medical treatment after the incident and
had two surgeries following the incident. Photographs of appellant’s injuries taken the
day after the incident were introduced as evidence. Reese stated that because of the
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incident, she and her daughter were evicted from the apartment complex. She stated
that the complex is low-income housing and that it is not unusual to find narcotics in the
area. Reese did not see either officer remove a baggie of cocaine from appellant’s hands.
Reese testified that several weeks before the incident, appellant was dropped off
at her apartment. The police knocked on the door around 2:00 a.m. and asked to search
her apartment. The police said that a car similar to Reese’s was involved in a domestic
disturbance. According to Reese, during the two years following the September 3, 2012
incident leading up to the trial in December 2014, appellant had been stopped and
searched on several occasions by Officer Putnam.
On cross-examination, Reese admitted that appellant had a no-trespassing
warning regarding her apartment complex. On redirect examination, Reese stated that
the warning specified that it applied to apartment 34, where appellant’s mother resided at
the time.
II. STANDARD OF REVIEW AND APPLICABLE LAW
In evaluating the legal sufficiency of the evidence, we consider the
evidence in the light most favorable to the verdict and determine whether a
rational trier of fact could have found the defendant guilty of all of the
elements of the offense beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Swearingen v.
State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). When the State pleads
a specific element of a penal offense that has statutory alternatives for that
element, the sufficiency of the evidence will be measured by the element
that was actually pleaded, and not any alternative statutory elements. Cada
v. State, 334 S.W.3d 766, 774 (Tex. Crim. App. 2011) (citing Planter v.
State, 9 S.W.3d 156, 159 (Tex. Crim. App. 1999); Fuller v. State, 73 S.W.3d
250, 255–56 (Tex. Crim. App. 2002) (Keller, P.J., concurring); Macias v.
State, 136 S.W.3d 702, 705–06 (Tex. App.—Texarkana 2004, no pet.)).
The due-process guarantee requires proof beyond a reasonable doubt to
support every element of the offense alleged and demands that we reverse
and order a judgment of acquittal if a rational trier of fact would [necessarily]
entertain a reasonable doubt as to the defendant's guilt. Swearingen, 101
S.W.3d at 95.
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Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014).
The Jackson standard “recognizes the trier of fact's role as the sole judge of the
weight and credibility of the evidence after drawing reasonable inferences from the
evidence.” Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). We must
determine whether the inferences made by the trier of fact are reasonable based on the
“cumulative force of all the evidence.” Id. We conduct this review by measuring the
sufficiency of the evidence by the elements of the offense as defined by a hypothetically
correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en
banc); see Adames, 353 S.W.3d at 860 (measuring the evidentiary sufficiency with
“explicit reference to the substantive elements of the criminal offenses as defined by state
law”).
Section 37.09(a)(1) of the Texas Penal Code defines the offense of tampering with
physical evidence with three elements: (1) knowing that an investigation or official
proceeding is pending or in progress; (2) a person alters, destroys, or conceals any
record, document, or thing; (3) with intent to impair its verity, legibility, or availability as
evidence in the investigation or official proceeding. See TEX. PENAL CODE ANN. § 37.09(a)
(1); Rabb, 434 S.W.3d at 616 (citing Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim.
App. 2008)). As authorized by the indictment in this case, the State was required to show
that appellant (1) knowing that an investigation was in progress, (2) concealed a plastic
baggie of suspected cocaine, (3) with intent to impair its availability as evidence in the
investigation. See TEX. PENAL CODE ANN. § 37.09(a)(1).
The three elements of section 37.09(a)(1) include “two different
culpable mental states”—knowledge and intent. Stewart v. State, 240
S.W.3d 872, 874 (Tex. Crim. App. 2007). The statute requires the
knowledge of an investigation and the intent to impair a thing's availability
as evidence. As defined by the Texas Penal Code, “[a] person acts
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knowingly, or with knowledge, with respect . . . to circumstances
surrounding his conduct when he is aware . . . that the circumstances exist.”
TEX. PENAL CODE ANN. § 6.03(b) [West, Westlaw through 2015 R.S.]. In
contrast, “[a] person acts intentionally, or with intent, with respect . . . to a
result of his conduct when it is his conscious objective or desire to . . . cause
the result.” [Id.] § 6.03(a).
Williams, 270 S.W.3d at 142–43.
III. DISCUSSION
Appellant challenges the sufficiency of the evidence as to each of the elements:
knowledge of an investigation, concealment, and intent to impair. We address each in
turn.
A. Knowledge of Investigation
Appellant first argues that the evidence was insufficient to show that he knew an
investigation was in progress because he “knew that the trespass charges against him
were dismissed or ‘no charged’ by the county attorney.” However, in support of this
assertion, appellant cites to a portion of the record in which defense counsel, on cross-
examination, asked Officer Putnam: “Do you realize that that alleged charge was
dismissed? It was no charge[d] by the county attorney?” Officer Putnam responded, “I
didn’t know that.” Even if we assume that the criminal trespass charge was later
dismissed—and there is nothing in the record that reflects that it was—that allegation
sheds no light on what appellant knew about the status of the criminal trespass charges
at the time appellant was arrested. Officer Putnam testified that he knew that appellant
had an active criminal trespass warning for the apartment complex. On September 1,
two days prior to the arrest at issue, Officer Putnam arrested appellant on the same
property for criminal trespass. On that occasion, Officer Putnam confirmed with dispatch
that appellant had an active criminal trespass warning for the complex. Reese also
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testified that appellant had a criminal trespass warning for an apartment on the property.
The jury could have reasonably inferred that appellant knew he was being arrested for
criminal trespass. See Adames, 353 S.W.3d at 860.
Appellant argues that the evidence was “insufficient to show that he knew an
investigation was in progress prior to any alleged act of concealment.” Here, the
indictment alleged that appellant concealed the baggie “knowing that an investigation was
in progress, to-wit: suspicious activity investigation . . . .” Appellant appears to argue
that, for his actions to fall within the purview of section 37.09, the evidence must show
that he had already committed a separate criminal offense because otherwise, he could
not have known that an investigation was pending. The court of criminal appeals has
rejected a similar argument. In Williams, the investigation-in-progress was a weapons
investigation. 270 S.W.3d at 144. In the course of an investigatory pat-down, a crack
pipe fell to the ground and the defendant stepped on it and crushed it. Id. at 142. The
court of criminal appeals held that the title of the investigation and the evidence allegedly
tampered with did not have to “match” in order for there to be a violation of section
37.09(a)(1), so long as the tampering was committed with the intent to impair its
availability as evidence in any investigation that the offender knows is pending. Id. at
145; see also Rabb v. State, 483 S.W.3d 16, 23 (Tex. Crim. App. 2016 (“There is no
requirement that the title of the investigation and evidence that was destroyed or
concealed match.”). Here, Officer Putnam testified that he had arrested appellant two
days earlier on the same property for criminal trespass. In addition, Reese testified that
when Officer Putnam first appeared, he told appellant, “[y]ou’re under arrest for criminal
trespassing. You know you’re not supposed to be here.” This evidence is sufficient to
prove that appellant knew that an offense had been committed. See Rabb, 483 S.W.3d
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at 23 (finding that testimony of officers that they informed defendant of the reason they
were questioning him was sufficient to prove that defendant knew an offense had been
committed); see also Curtis v. State, No. 04-14-00236-CR, 2015 WL 672228, at *2 (Tex.
App.—San Antonio Feb. 11, 2015, no pet.) (mem. op., not designated for publication)
(finding evidence for tampering with evidence sufficient where officer informed defendant
he was investigating defendant for criminal trespass and defendant swallowed substance
that appeared to be crack cocaine).
B. Concealment
Appellant also argues that the evidence is insufficient to establish that he
concealed the drugs in his hand “because the drugs never left his hand, and it was at all
times visible and in plain view to the police.” We disagree.
While “conceal” is not defined by the statute, courts have held it means to hide, to
remove from sight or notice, or to keep from discovery or observation. See Gaitan v.
State, 393 S.W.3d 400, 401–02 (Tex. App.—Amarillo 2012, pet. ref’d); Rotenberry v.
State, 245 S.W.3d 583, 588–89 (Tex. App.—Fort Worth 2007, pet. ref'd). Appellant cites
Blanton v. State in support of his argument. Nos. 05-05-01060-CR & 05-05-01061-CR,
2006 WL 2036615, at *2 (Tex. App.—Dallas March 21, 2007, pet. ref’d) (not designated
for publication). In Blanton, an officer signaled the defendant to stop for a traffic violation;
before the defendant stopped, he threw two plastic baggies out the window. Id. at *1.
Although the bags were ripped, they contained a measurable amount of crack cocaine
and marijuana. Id. The indictment alleged that the defendant knowingly altered,
destroyed, or concealed the cocaine. Id. The Dallas Court of Appeals found that the
evidence was insufficient to establish that the defendant concealed or destroyed the
cocaine, but was sufficient to establish that he altered the evidence. Id. at *2.
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We find Blanton to be inapplicable to the facts in the present case. Here, Officer
Putnam testified that after he asked appellant what was in his hands, appellant turned
away and tried to keep his hands away from the officer’s view. He also testified that
appellant “switched” whatever was in his right hand to his left hand. According to Officer
Putnam, appellant refused to open his hand when instructed to do so, and the officers
had to pry his hand open. Officer Martinez testified that appellant was “fidgeting” with
something in his hands and was trying to put it in his back pocket. He stated that the
officers instructed appellant repeatedly to open his hand, but appellant “wouldn’t let go of
the item” until Officer Putnam struck appellant’s fist a couple of times with his flashlight.
This evidence is sufficient to establish that appellant concealed the baggie of cocaine.
See Gaitan, 393 S.W.3d at 402 (“That his effort was ultimately unsuccessful matters little;
the factfinder had before it some evidence from which it could legitimately deduce that
appellant was ‘hiding’ what he had from the officers called to investigate the
disturbance.”).
C. Intent to Impair Availability as Evidence
Finally, appellant argues that the evidence is insufficient to establish that he
intended to impair the availability of the cocaine as evidence. According to appellant,
“[t]he grinding of the baggie would not have destroyed or made the cocaine disappear.”
As the Texarkana Court of Appeals has held, the tampering statute “does not require that
the evidence be made useless to the investigation or proceeding by its concealment;
rather, it requires that the defendant have acted with the intent to impair its usefulness in
the investigation or the proceeding.” Lewis v. State, 56 S.W.3d 617, 625 (Tex. App.—
Texarkana 2001, no pet.). Officer Putnam testified that appellant was clenching the
baggie in his hand “rapidly as if he was trying to grind something up.” This evidence is
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sufficient to establish that appellant had the requisite intent to impair the availability of the
cocaine as evidence. See id. Moreover, appellant’s attempts to conceal the cocaine
show that he had the intent to impair its availability as evidence. See id.
We conclude that the evidence discussed above and the reasonable inferences to
be derived from the evidence were sufficient to permit a rational jury to conclude, beyond
reasonable doubt, that appellant intended to conceal the cocaine and intended to impair
its availability as evidence against him while knowing that an investigation was in
progress. See TEX. PENAL CODE ANN. § 37.09(a)(1). The evidence is sufficient to support
appellant’s conviction. We overrule his sole issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
30th day of June, 2016.
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