Timothy Whitlock v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-05-00206-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TIMOTHY WHITLOCK, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

A jury convicted Appellant of the third degree felony of tampering with physical evidence. Appellant pleaded true to the two enhancement allegations contained in the indictment, and the jury assessed his punishment at imprisonment for forty years. Appellant presents two issues challenging the legal and factual sufficiency of the evidence to support his conviction. We affirm.

Background

Arp City Marshal, Stacy Langlinais, stopped Appellant for a speeding violation. When she questioned Appellant about his ability to pay an outstanding traffic warrant, he reached in his pocket, and something fell from his pocket that appeared to the officer to be a marijuana cigarette. When she asked [w]hat is that, Appellant responded, Oh my God, snatched up the item from the ground, and ate it. Appellant began to vomit, and Langlinais called EMS (Emergency Medical Services), but Appellant refused treatment. Langlinais examined the vomit, but could not distinguish the object that Appellant had just eaten. While being transported between the jail and court by Smith County Transport Officer April Ishee, Appellant volunteered the following: Man, I was drunk. A joint fell on the ground. I bent down, picked it up, and ate it. I ate half a joint. Ishee testified that she did not ask Appellant any questions and that Appellant simply volunteered the statement.

Appellant did not testify. At the punishment phase, the State presented evidence that Appellant had three prior felony convictions and eight prior misdemeanor convictions.

Legal and Factual Sufficiency

In his two issues, Appellant contends the evidence is legally and factually insufficient to support his conviction.

Standard of Review

The standard for reviewing a legal sufficiency challenge is whether, viewing the evidence in the light most favorable to the jury s verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). In the relatively recent case of Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), the court of criminal appeals explained the factual sufficiency standard.

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Id. at 484-85.

Applicable Law

Subsection 37.09(a)(1) of the Texas Penal Code provides, in part, as follows:

(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; . . .

Tex. Pen. Code Ann. 37.09(a)(1) (Vernon 2003).

The statute requires that the defendant know that an investigation is pending or in progress when he or she alters, destroys, or conceals the evidence. As used in the statute, the terms pending and in progress are not synonymous. Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App. Houston [1st Dist.] 2004, pet. ref d). Pending means impending or about to take place. Id.; see also Model Penal Code 241.7.

Discussion

It is undisputed that Appellant destroyed or concealed a marijuana cigarette by swallowing it. The question remaining is did Appellant act knowing that an investigation was pending or in progress. Appellant contends that at the time he ingested the marijuana, the officer s investigation concerned only a speeding violation and an outstanding warrant for running a stop sign and that the marijuana he ate was not relevant to any investigation then pending or in progress. We disagree.

After he was stopped for speeding and after the subsequent discovery of the outstanding traffic warrant, Appellant reached in his right front pocket. Officer Langlinais testified that when Appellant withdrew his hand from his pocket, she noticed an object fall to the ground that she believed was a marijuana cigarette. She told the jury that at that time the focus of her investigation shifted to Appellant s possible possession of marijuana. She immediately shined her flashlight on the joint and asked, What was that? Appellant said, Oh my God, scooped the cigarette off the ground, and ate it. Very shortly thereafter, Appellant began to choke and then vomited on the roadside.

Appellant maintains the facts in his case are similar to those in Pannell v. State, 7 S.W.3d 222, 223 (Tex. App. Dallas 1999, pet. ref d), and that the resolution of the question of his knowledge that an investigation for possession of marijuana was pending or in progress is governed by the holding in that case. In Pannell, a police officer attempted to stop the defendant for speeding in a school zone. Id. at 223. When the officer turned on his emergency lights, he saw Pannell throw what he thought was a cigarette out of the window and then observed Pannell empty the contents of a baggie out of the car window. Id. When Pannell stopped his car, he admitted to the officer that he had thrown a marijuana cigarette out of his car window and that the plastic bag he emptied had contained marijuana. Id. The court of appeals reversed Pannell s conviction for destroying evidence, reasoning that when Pannell threw the marijuana from his car, the officer was investigating only a speeding violation. Id. at 224. Because there was then no investigation pending or in progress in which the marijuana would have served as evidence, there was no evidence that Pannell destroyed the marijuana knowing that an investigation was pending or in progress. Id.

In this case, Officer Langlinais s investigation of Appellant s traffic violation was complete. There is abundant evidence that from the moment Officer Langlinais saw the joint fall from Appellant s pocket, Appellant realized her investigation related to his possession of marijuana. When she questioned him about the cigarette, he quickly picked up the evidence relevant to the investigation and ate it.

Measured against the appropriate standards of review, the evidence is both legally and factually sufficient to support Appellant s conviction. Appellant s first and second issues are overruled.

Disposition

The judgment is affirmed.

BILL BASS

Justice

Opinion delivered June 21, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)