Charles Gene Scott v. State

IN THE

TENTH COURT OF APPEALS

No. 10-07-00238-CR

Charles Gene Scott ,

Appellant

v.

The State of Texas ,

Appellee

From the 413th District

Court

Johnson County , Texas

Trial Court No. F41235

MEMORANDUM Opinion

Appellant Charles Gene Scott was charged

by indictment with the offense of tampering with physical evidence. After a

bench trial, the court found Scott guilty and assessed his punishment, enhanced

by two previous felony convictions, at twelve years’ imprisonment. By one

issue, Scott contends that the evidence is legally insufficient to support his

conviction. We will affirm.

When reviewing a challenge to the legal

sufficiency of the evidence to establish the elements of a penal offense, we

must determine whether, after viewing all the evidence in the light most

favorable to the verdict, any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 , 99 S. Ct. 2781, 2789 , 61 L. Ed. 2d 560

(1979). Our duty is to determine if the finding of the trier of fact is

rational by viewing all of the evidence admitted at trial in the light most

favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex.

Crim. App. 1992). In doing so, any inconsistencies in the evidence are

resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

The evidence viewed in the light most

favorable to the finding of guilt is as follows. Sometime after 5:00 a.m. on January 21,

2007, Cleburne Police Officer Brian Proctor observed Scott leaving the front

yard of the residence located at 319 Hollingsworth in Cleburne, Texas, a “known

location for using and distributing narcotics,” specifically crack-cocaine.

Officer Proctor recognized Scott as a resident of the neighborhood. On an

earlier occasion, Scott had informed Officer Proctor that he had been hooked on

crack-cocaine for approximately thirty years, and Officer Proctor had told

Scott to stay away from 319 Hollingsworth if he wanted to “get clean.” Scott

began riding down the street on a bicycle that had no front or rear light,

which is a violation of a city ordinance. Officer Proctor had stopped Scott on

several prior occasions for not having a light on his bicycle, and during at least

one of the prior stops, Officer Proctor had searched Scott’s pockets. Scott

saw the police officers and was concerned about riding his bicycle by them

because his flashlight was going out. Scott saw Officer Proctor pulling in

behind him in a patrol car. Just before Officer Proctor activated his

emergency lights, Scott swerved and threw something into a nearby grassy area

before returning to the street. It was still very dark in the area that

morning. Officer Proctor then stopped Scott and asked him what he was doing

out at that time of the morning and what the object was that had come from his

hand. Scott replied that he was just riding his bicycle. Officer Proctor then

searched the area where he had observed Scott throw something from his hand and

found “a metal pipe with burnt residue on either end with a metal Brillo Chore

Boy pad inside of it,” an object that Officer Proctor described as “commonly

used to smoke crack-cocaine.”

A person commits the offense

of tampering with physical evidence if, knowing that an offense has been

committed, he 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. Tex. Pen. Code Ann. § 37.09(d)(1)

(Vernon 2003). It is not enough that the person know his action will

impair the availability of the object as evidence; rather, the person must intend

to impair the object’s availability. Stewart v. State , 240 S.W.3d 872,

874 (Tex. Crim. App. 2007). In other words, the person’s conscious objective

or desire must be to impair the object’s availability as evidence in any

subsequent investigation. Id. ; see Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003).

Citing Pannell v. State ,

7 S.W.3d 222, 223-24 (Tex. App.—Dallas 1999, pet. ref’d), Scott first argues

that the evidence is legally insufficient to support his conviction because

“the only investigation that existed at the time Appellant dropped the crack

pipe was violation of a municipal ordinance against bicycle riding with

insufficient lighting.” Pannell , however, is distinguishable and, thus,

does not support Scott’s conclusion.

In Pannell , a police

officer initiated a traffic stop after he observed Pannell driving in a school

zone at an excessive speed. After the officer turned on his emergency lights,

he observed Pannell throw a cigarette out of his car window. He then saw

Pannell empty the contents of a small plastic bag through the window. After

Pannell stopped, he told the officer that he had thrown marijuana from the

car. The court of appeals reversed Pannell’s conviction for destroying

evidence, holding that at the time Pannell threw the marijuana from his car,

the officer was investigating only a speeding violation. Because no

investigation in which the marijuana would serve as evidence was pending or was

in progress at the time he threw it from his car window, there was no evidence

that Pannell destroyed the marijuana knowing that an investigation was in

progress. [1]

Id. at 224 .

Unlike the defendant in Pannell

who was apparently charged under Penal Code subsection 37.09(a)(1), which

requires knowledge that an investigation was either pending or in progress, id.

at 223 (citing Tex. Pen. Code Ann. §

37.09(a)(1)), Scott was charged under subsection 37.09(d)(1). Under subsection

37.09(d)(1), the State is not required to prove that Scott knew an

investigation was pending or in progress, Tex.

Pen. Code Ann. § 37.09(d)(1); therefore, the status of Officer Proctor’s

investigation is irrelevant.

Next, citing Hollingsworth

v. State , 15 S.W.3d 586, 595 (Tex. App.—Austin 2000, no pet.), Scott

contends that the evidence is legally insufficient to support his conviction

because, instead of concealing the crack pipe, he exposed it to the arresting

officer. But, Hollingsworth is also distinguishable. In Hollingsworth ,

the defendant was pursued by a police officer. He went behind a dumpster and

spit out cocaine. There was evidence that it is very common to carry cocaine

in the mouth, often to avoid being detected. However, the court held the

evidence was insufficient to show the defendant concealed the cocaine with the

intent to impair its availability as evidence in some kind of investigation,

noting there was no evidence that the defendant saw the police officers in the

case and then put the evidence into his mouth in order to hide it from them. Id. at 595 . Additionally, the court noted the defendant spit out the cocaine,

exposing it to view. Id.

Scott argues that, similarly

to the defendant in Hollingsworth , he normally carried his crack pipe in

his gloves and by dropping it, he was actually exposing it to view rather than

concealing it. But, the issue in this case is not whether Scott concealed the

crack pipe by carrying it in his gloves. The issue is whether Scott concealed

the crack pipe by throwing it into the grassy area.

Viewing the evidence in the

light most favorable to the verdict, we hold that a rational trier of fact

could have found that Scott concealed the crack pipe with the intent to impair

its availability as evidence in any subsequent investigation and that this evidence is legally sufficient to support the trial

court’s guilt finding.

Finally, citing Stewart

v. State , 240 S.W.3d 872, 874 (Tex. Crim. App. 2007), Scott argues that

there is no evidence of his intent to impair the availability of the

crack pipe in any subsequent investigation. Scott points to his testimony at

trial in which he stated, “Really for myself, I had forgot all about that, the

metal pipe that was in my glove.” However, we must view all of the evidence in

the light most favorable to the verdict. Adelman,

828 S.W.2d at 422 . Furthermore, Scott’s conduct alone is sufficient to infer

intent. See Patrick v. State , 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); Tyler v. State , 950 S.W.2d 787, 789 (Tex. App.—Fort Worth

1997, no pet.). As detailed above, the evidence is legally sufficient to support the trial

court’s finding that Scott intended to impair the availability of the

crack pipe as evidence in any subsequent investigation.

Because the evidence is

legally sufficient to support Scott’s conviction, we overrule his sole issue

and affirm the trial court’s judgment.

REX D. DAVIS

Justice

Before

Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion

delivered and filed April 29, 2009

Do

not publish

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[1] The Court of Criminal Appeals recently

concluded that Pannell erroneously added a mental-state requirement that

was not supported by the language of subsection 37.09(a)(1). See Williams

v. State , 270 S.W.3d 140, 144 (Tex. Crim. App. 2008). However, because Pannell

is distinguishable, we need not discuss Williams .

four categories: (1) summation of

the evidence, (2) reasonable deduction from the evidence, (3) answer to the argument of opposing

counsel, and (4) plea for law enforcement. Cantu v. State , 939 S.W.2d 627, 633 (Tex. Crim.

App. 1997); Alejandro v. State , 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). While it is not

error for the State to quote or paraphrase the jury charge, it is error for the State to present a

statement of the law that is contrary to that presented in the charge to the jury. Whiting v. State ,

797 S.W.2d 45, 48 (Tex. Crim. App. 1990); Jones v. State , 641 S.W.2d 545 , (Tex. Crim. App.

1982). See also Clanton v. State , 528 S.W.2d 250 (Tex. Crim. App. 1975) (argument where State

told jurors that while they could not discuss how long the appellant would be required to serve any

sentence they imposed, they could “consider this” in assessing punishment was found to be error);

Clay v. State , 741 S.W.2d 209 (Tex. App.—Dallas 1987, pet. ref’d) (argument that the jury could

consider how the parole laws may affect the verdict of the jury misstated the law given in the

charge and was error).

Following an objectionable argument, an instruction by the court to disregard the comment

will normally obviate the error, unless the remark is so inflammatory that its prejudicial effect

cannot reasonably be removed by such an admonishment. Perez v. State , 994 S.W.2d 233, 236-37

(Tex .App.—Waco 1999, no pet.). Moreover, in order for an improper argument to rise to a level

mandating reversal, the argument must be "extreme or manifestly improper, violative of a

mandatory statute, or inject new facts harmful to the accused." Carlock v. State , 8 S.W.3d 717,

723 (Tex. App.—Waco 2000, no pet.); Id .

Assuming that the last sentence of the State’s argument in this case suggested to the jury that

it may consider the effect of parole and good time credit, contrary to the court’s charge, the failure

of Beck’s counsel to object would satisfy the first prong of Strickland .

The question then becomes, was Beck prejudiced by his counsel’s failure to object? We do

not believe he was. The argument made was not of the type that it was so prejudicial that an

instruction to disregard would not cure the prejudicial effect. Additionally, the State made a

passionate plea for law enforcement against drug dealers in Freestone County. The jury could

properly have taken that plea into account when assessing the sentence. Further, a twelve year

sentence out of a possible twenty years does not indicate that the jury was prejudiced by the State’s

argument and counsel’s lack of objection. Beck failed to meet the second prong of Strickland .

We overrule his sole issue in cause number 10-01-153-CR.

Conclusion

Having overruled Beck’s sole issue in each conviction, we affirm the judgment in each appeal.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed April 10, 2002

Do not publish

[CR25]