The opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00138-CR
Emilio Ramirez-Torres, Appellant
v.
The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2016-842, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
ME MO RAN DU M O PI N I O N
Emilio Ramirez-Torres appeals his tampering with physical evidence conviction on
sufficiency grounds. We will affirm.
BACKGROUND
Responding to a report of marijuana use under the Faust Street Bridge in New
Braunfels, Officer Stephen Dowell went to investigate. As he neared the river, he smelled fresh
marijuana. Dowell saw Ramirez-Torres sitting on a rock with his back to him. Ramirez-Torres
had his phone in his hand and Dowell saw “a green leafy substance” that “smelled like marijuana”
on its screen. Dowell asked him what he was doing, and Ramirez-Torres said he was “rolling a
joint.” When Ramirez-Torres turned his head and saw that the voice asking the question belonged
to a police officer, he “threw what was on the screen into the nearby river—in the direction of the
nearby river.” Dowell could tell that Ramirez-Torres had been drinking beer. He could smell it,
and Ramirez-Torres was sitting next to a cooler with empty containers. Dowell arrested him for
public intoxication “due to being in a public place. He was alone and not with anybody else at the
time, and he had been drinking alcohol.” Ramirez-Torres “was near the river and proved to be an
endangerment [to] himself depending on the quantity of alcohol that he had consumed.” And “he
had tampered with evidence, making it a felony to make that inaccessible for me.” Officer Tye
Jackson searched Ramirez-Torres and found a pack of cigarettes on him that “smelled very
strongly” of unburnt marijuana, but found no marijuana.
Dowell looked in the vicinity but did not find any “small bits of green marijuana
mixed in with the grass and the rocks and everything nearby.”
Ramirez-Torres was indicted on a single count of tampering with physical evidence
in two paragraphs. The first alleged Ramirez-Torres, knowing that an investigation was pending
or in progress, altered, destroyed, or concealed marijuana with intent to impair its verity, legibility,
or availability as evidence in the investigation. The second alleged Ramirez-Torres, knowing that
an offense had been committed, altered, destroyed, or concealed marijuana with intent to impair
its verity, legibility, or availability as evidence in any subsequent investigation of or official
proceeding related to that offense.
At a jury trial, Dowell and Jackson testified about the incident as described above.
Ramirez-Torres cross-examined Dowell on the fact that in his report, Dowell 1) wrote that
Ramirez-Torres threw the marijuana towards the river rather than in the river, and 2) did not
document that Dowell tried to locate what he had seen thrown. Ramirez-Torres also asked Dowell
whether he could have charged Ramirez-Torres with misdemeanor possession of marijuana instead
of felony tampering, and Dowell testified that he could not have; he could not prove “one way or
the other” that the substance was marijuana after Dowell “made it unavailable” to him. The jury
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found Ramirez-Torres guilty as charged, assessed punishment at four and a half years’
confinement, and recommended the trial court put him on community supervision. The trial court
assessed the sentence as recommended, suspended the sentence, and placed Ramirez-Torres on
community supervision for seven years. In a single issue, Ramirez-Torres contends the evidence
is insufficient to support the conviction because the evidence showed he either moved the
marijuana into plain sight or never possessed it in the first place.
APPLICABLE LAW AND STANDARD OF REVIEW
We review a challenge to the sufficiency of the evidence under the standard set
forth in Jackson v. Virginia, 443 U.S. 307 (1979). See Matlock v. State, 392 S.W.3d 662, 667 (Tex.
Crim. App. 2013). Under that standard, we examine all the evidence in the light most favorable to
the verdict and resolve all reasonable inferences from the evidence in the verdict’s favor to
determine whether any rational trier of fact could have found the essential elements of the charged
offense beyond a reasonable doubt. Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015).
“[N]o evidence is ignored because the standard requires a reviewing court to view all of the
evidence in the light most favorable to the verdict.” Cary v. State, 507 S.W.3d 750, 759 n.8 (Tex.
Crim. App. 2016) (internal quotation marks and emphasis omitted). “An appellate court cannot
act as a thirteenth juror and make its own assessment of the evidence.” Nisbett v. State, 552 S.W.3d
244, 262 (Tex. Crim. App. 2018). Rather, “[a] court’s role on appeal is restricted to guarding
against the rare occurrence when the factfinder does not act rationally.” Id. This rationality
requirement is a key and explicit component of the Jackson sufficiency standard. See Jackson,
443 U.S. at 319.
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APPLICATION
Under the tampering-with-physical-evidence statute, and the charges here, the jury
could convict Ramirez-Torres of either a section 37.09(a)(1) or 37.09(d)(1) offense. See Tex. Penal
Code § 37.09(a)(1) (“(a) A person commits an offense if, knowing that an investigation or official
proceeding is pending or in progress, he: (1) 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[.]”);§ 37.09(d)(1) (“(d) A person commits an offense if the person: (1) knowing
that an offense has been committed, alters, destroys, or conceals any record, document, or thing
with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation
of or official proceeding related to the offense[.]”). The indictment named the thing altered,
destroyed, or concealed—with the requisite knowledge and intent—as marijuana. Although the
State was not necessarily required to allege the specific identity of the tampered with “thing” in
the indictment as marijuana, see State v. Zuniga, 512 S.W.3d 902, 906-09 (Tex. Crim. App. 2017),
it did. The hypothetically correct jury charge therefore requires (as the actual jury charge did here),
proof that the tampered-with thing was marijuana. See David v. State, 663 S.W.3d 673, 679 (Tex.
Crim. App. 2022).
1. Possession of Marijuana
Ramirez-Torres argues that because the officers never found marijuana, he never
possessed it. But a jury is entitled to rely on an officer’s lay opinion that he smelled or saw
marijuana as evidence of possession. Osbourn v. State, 92 S.W.3d 531, 538-39 (Tex. Crim. App.
2002); Tex. R. Evid. 701 (lay opinion testimony must be “(a) rationally based on the witness’s
perception; and (b) helpful to clearly understanding the witness’s testimony or to determining a
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fact in issue”). “Unlike other drugs that may require chemical analysis, mari[j]uana has a distinct
appearance and odor that are familiar and easily recognizable[.]” Osbourn, 92 S.W.3d at 538.
Dowell’s opinion that Ramirez-Torres possessed marijuana, based on the odor he smelled and
the green, leafy substance he saw, was one that a reasonable person could draw from the
circumstances. Id. And that testimony was helpful to the determination of a fact in issue—whether
Ramirez-Torres had possession of marijuana. Id.
Ramirez-Torres argues that Dowell’s opinion testimony (even combined with
Jackson’s opinion testimony that his pack of cigarettes smelled very strongly of unburnt marijuana
and his own statement that he was rolling a joint), is inadequate to prove possession because
Dowell and Jackson failed to find the evidence and verify that it was marijuana. In David,
663 S.W.3d 673, the Court of Criminal Appeals rejected a similar argument.
There, agents testified that the defendant flushed narcotics before they breached
the door of the bathroom, and they found only the remnants of what did not flush mixed with
excrement. Id. at 677. The Court found that the agents’ testimony that the “loose green leafy
substance in the toilet” was marijuana was sufficient to establish that the substance was marijuana.
Id. at 677, 681. “Just because the agents could have collected the marijuana, dried it, and tested
it, does not mean that the agents had to collect the marijuana, nor does it mean that the evidence is
somehow ‘less sufficient’ because they did not.” Id.
Dowell’s lay opinion as to the identity of the substance he smelled and saw was
rationally based on his firsthand sensory experience, probative to possession, and consistent with
Jackson’s testimony that his pack of cigarettes smelled like marijuana, and Ramirez-Torres’
statement that he was “rolling a joint.” And although Dowell, on cross-examination, stated that he
could not “legally prove” the substance was marijuana because Ramirez-Torres “threw it in the
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river,” the jury is the exclusive judge of the facts and is bound to receive the law applicable to the
case from the trial court. Tex. Code Crim. Proc. arts. 36.13, 36.14. Under Osbourn and David,
Dowell’s testimony was sufficient to support the jury’s threshold finding that Ramirez-Torres
possessed marijuana. See Osbourn, 92 S.W.3d at 538; David, 663 S.W.3d at 681.
2. Concealment of Marijuana
Ramirez-Torres argues that his moving of evidence did not alter or conceal it, and
that this case is controlled by Stahmann v. State, 602 S.W.3d 573 (Tex. Crim. App. 2020). There,
the Court of Criminal Appeals held that evidence that the defendant threw a pill bottle over a wire
fence was not sufficient to support a tampering conviction where witnesses never lost sight of the
pill bottle, witnesses directed an officer to the bottle, the officer could see it “very clearly,” and the
officer easily retrieved it. Id. at 576, 580-81.
In so doing, the Court explained that to conceal a physical thing is to hide it, remove
it from sight or notice, or keep it from discovery or observation. Id. at 581. It held that a rational
jury could have reasonably inferred that Stahmann intended to conceal the pill bottle when he
threw it over the fence, but it could not find actual concealment because the evidence showed that
“the bottle landed short of the bush in plain view on top of some grass.” Id. Since Stahmann, the
Court has emphasized that its holding was a narrow one.
In McPherson v. State, 677 S.W.3d 663 (Tex. Crim. App. 2023), the Court held that
evidence a defendant threw marijuana cigarillos out of his moving vehicle was sufficient to support
his tampering-by-concealment conviction even though the officer knew where the “brown objects”
landed and, after backtracking, retrieved them from plain view on the side of the highway. Id. at
664-67. Unlike in Stahmann, the evidence was not in “continuous sight” and was not immediately
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discovered. Id. at 666-67. And in Ransier v. State, 670 S.W.3d 646 (Tex. Crim. App. 2023), the
Court held that the defendant was not entitled to a lesser-included offense instruction on attempted
tampering where the officer testified that the defendant momentarily concealed a syringe from him
by holding it in his fist and shoving it underneath the driver’s side seat. Id. at 648, 650-51.
The through line on these cases is that to prove tampering by concealment, the thing
concealed must in fact be hidden, removed from sight or notice, or kept from discovery or
observation—even if just temporarily.
Here, the State offered evidence that, owing to Ramirez-Torres’s action, the
marijuana was permanently hidden, removed from sight, or kept from discovery. Ramirez-Torres
notes that the Texas tampering-with-evidence statute does not include a “moves” theory of liability,
and asserts that the evidence shows only movement, a brushing of the substance onto the ground,
where it remained in plain sight, like the pill bottle in Stahmann. But that is not what the evidence,
looked at in the light most favorable to the verdict, shows. Dowell testified that when he walked
up and Ramirez-Torres turned and saw him in his patrol uniform, Ramirez-Torres tossed the loose
marijuana on his phone screen “into the nearby river -- in the direction of the nearby river” and
Dowell was unable to collect it. Dowell testified that he attempted to recover the marijuana by
looking around the vicinity for “the small bits of green marijuana mixed in with the grass and the
rocks and everything nearby,” but was unsuccessful.
Ramirez-Torres points out that Dowell’s search was short, that there is no evidence
that Dowell searched using his sense of smell and that the “record is silent as to difficulties” Dowell
might have had while searching for the marijuana. But the difficulties are inherent to the
circumstances: Dowell’s testimony, when examined in the light most favorable to the verdict,
supports a reasonable inference that Ramirez-Torres tampered with the evidence by dispersing it
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into an environment that either camouflaged it (rocks and grass) or absorbed it (river). Jackson,
443 U.S. at 319. And, as a matter of common sense, searching for “small bits of green marijuana”
among rocks and grass is more difficult than searching for a pill bottle, cigarillo, or syringe in the
same environment. The marijuana was not moved into plain view, quite the opposite. Finally,
Ramirez-Torres asserts that the search should have been for the “grassy substances” Dowell saw,
instead of just for marijuana. But we have already held that Dowell’s opinion that what he saw
and smelled was fresh marijuana was sufficient to prove it was fresh marijuana. Here, the jury had
before it testimony from which it could conclude that Ramirez-Torres did not just move the
marijuana; he concealed it. See Stahmann, 602 S.W.3d at 581; McPherson, 677 S.W.3d at 664-65;
Ransier, 670 S.W.3d at 648.
CONCLUSION
The combined and cumulative force of all the admitted evidence, viewed in the
light most favorable to the verdict, supports the jury’s threshold finding that Ramirez-Torres
possessed marijuana, and its ultimate finding that he concealed it. See Jackson, 443 U.S. at 319.
Ramirez-Torres does not challenge the sufficiency of the evidence to prove the remaining elements
of tampering with evidence, so we affirm the judgment of the trial court. Tex. R. App. Proc. 47.1.
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Byrne, and Justices Kelly and Theofanis
Affirmed
Filed: December 12, 2024
Do Not Publish
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