CRAIG ERROL HANNA v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Francis

Following a bench trial, the trial court convicted Craig Errol Hanna of tampering with physical evidence and sentenced him to three years in prison.   In one issue, appellant contends the evidence is legally insufficient to support his conviction.   We affirm.

The only witness at trial was Rockwall County Sheriff's Deputy Keven Rowan.   Rowan testified he was on patrol after midnight, traveling north on Dalrock Road, when he saw appellant on a motorcycle.   The motorcycle's license place was bent, and Rowan could not read it.   Rowan turned on his overhead lights to make a traffic stop.   Appellant “continued to roll for a little bit” before Rowan saw him put his hand in his pocket and “drop something on the ground.”   Appellant then made a turn and stopped his motorcycle.

Rowan believed the item was some type of contraband that appellant did not want him to find while he was conducting the traffic stop.   He approached appellant, had him get off the motorcycle, and advised him of the reason for the stop.   He then placed appellant in handcuffs and went to retrieve “whatever it was that he threw.”   Rowan went back to the corner of Dalrock Road and Lakeside and found .87 ounces of a green leafy substance.   The parties stipulated the substance was marijuana.   A DVD recording of the stop was admitted into evidence.

On a legal sufficiency challenge, we review 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.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979).   The fact finder, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side.   Westbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000).   We defer to the fact finder's determinations of credibility and may not substitute our judgment for that of the fact finder.  Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.2010).

The indictment alleged that appellant did, “knowing that an investigation proceeding was in progress, to-wit:  a traffic stop, intentionally or knowingly conceal a green leafy substance, to-wit:  marihuana, with intent to impair its verity or availabilty as evidence in the investigation[.]”  See Tex.Code Crim. Proc. Ann. art. 37.09(a)(1) (West Supp.2011).   Appellant argues there was legally insufficient evidence that he concealed marijuana while being followed by the officer “when in fact [he] exposed the contraband to public view when he threw it away.”   As support, he relies on Hollingsworth v. State, 15 S.W.3d 586 (Tex.App.-Austin 2000, no pet.).

In Hollingsworth, a police officer responding to a report of a knife fight saw the defendant walking in an area known for drug trafficking.   The officer believed the defendant was involved in the fight and followed him in his patrol car.   The defendant started walking away at a faster pace.   The officer asked the defendant twice to stop, but the defendant kept walking and ducked briefly behind a dumpster, where a second officer saw him spit out what appeared to be crack cocaine.  15 S.W.3d at 589–90.   The defendant was arrested for possession of a controlled substance, and the officers seized the objects that the defendant had spit out.   Testing confirmed the substance was cocaine.   The two officers testified it was common for people to carry crack cocaine in their mouths to avoid its being detected.  Id. at 590.   The defendant was convicted of tampering with physical evidence and possession of less than one gram of cocaine.  Id. at 591.

On appeal, the court concluded no evidence in the record established the defendant was carrying cocaine in his mouth to impair its availability as evidence;  rather, the court said the evidence showed the defendant was carrying the cocaine in his mouth “because that is how crack cocaine is commonly carried, undoubtedly to keep it from public view.”   Id. at 595.   The court reasoned there was no evidence that the defendant saw the police officers and “then put the evidence into his mouth in order to hide it from them.   Appellant spit out the cocaine, thus exposing it to view.”  Id. The court held the evidence was insufficient to support the conviction and rendered a judgment of acquittal.

Appellant argues that, similar to the defendant in Hollingsworth, “there was no evidence that he had put the contraband in his pants pocket to hide it from the officer.   When he threw the marihuana out of his pants pocket, he had not concealed it, but exposed it to public view.”   The issue, however, is not whether appellant concealed the marijuana by carrying it in his pocket.   The issue is whether appellant concealed the marijuana by throwing it in a grassy area.   See Scott v. State, No. 10–07–00238–CR, 2009 WL 1163406, at *3 (Tex.App.-Waco Apr. 29, 2009 no pet.) (mem. op., not designated for publication).

Here, the evidence showed that after the officer activated his emergency lights to stop appellant, appellant tossed the drugs on the ground before turning on another street and stopping.   Viewing the evidence in a light most favorable to the verdict, we conclude a rational trier of fact could have found appellant concealed the marijuana with intent to impair its availability as evidence in an investigation.   Because the evidence is legally sufficient to support appellant's conviction, we overrule his sole issue.

We affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

CRAIG ERROL HANNA, Appellant

No. 05–11–00529–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 439 th Judicial District Court of Rockwall County, Texas.  (Tr.Ct.No.2–10–513).

Opinion delivered by Justice Francis, Justices Bridges and Lang participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 17, 2012.

/Molly Francis/

MOLLY FRANCIS

JUSTICE

MOLLY FRANCIS JUSTICE