NUMBER 13-15-00014-CR

                                COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI – EDINBURG

FELIX VILLARREAL,                                                                     Appellant,

                                               v.

THE STATE OF TEXAS,                                                                     Appellee.


                      On appeal from the 156th District Court
                             of Bee County, Texas.


                            MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Chief Justice Valdez
       A jury convicted appellant, Felix Villarreal, of, among other things, tampering with

evidence.1 See TEX. PENAL CODE ANN. § 37.09(a)(1) (West, Westlaw through 2015 R.S.).

By one issue, Villarreal contends that the evidence is insufficient to support his conviction



      1 Villarreal was also convicted of possession of methamphetamine and possession of cocaine.

However, Villarreal does not challenge those convictions. Thus, we need not discuss those convictions.
of tampering with evidence.2 We affirm in part, and we reverse and render in part and

remand in part.

                                          I.      BACKGROUND

       A loss-prevention officer with Wal-Mart, Joseph Wyatt, testified that he witnessed

Villarreal steal a pair of shorts from the store. According to Wyatt, shortly thereafter, he

identified Villarreal to a police officer as a shoplifter. Wyatt stated that Villarreal then ran

through the parking lot between parked cars. Wyatt observed Villarreal take a pill bottle

out of his pocket and toss it “underneath” a car. Wyatt estimated that Villarreal threw the

bottle “[m]aybe a foot probably” underneath the car. Wyatt picked up the pill bottle and

gave it to the officer on the scene, Brandon Burdick.

       On cross-examination, Villarreal’s defense counsel asked Wyatt if he had “to get

down on [his] hand and knees to collect the pill bottle,” and Wyatt replied, “No, ma’am.”

Defense counsel asked, “How did you do it? Just reached down?” Wyatt responded,

“Just picked [it] up underneath.” Wyatt agreed that the bottle was in plain view and easy

to observe. When asked, “Was it hidden in any way,” Wyatt responded, “No, ma’am.”

       On redirect examination, Wyatt stated that Villarreal threw the bottle “underneath”

the car, “[p]robably like right in the middle of the passenger and—the middle of the

passenger and the passenger door.” On re-cross examination, when asked, “And you’re

claiming that you watched him the whole time,” and “[You n]ever lost sight of him,” Wyatt

responded, “Yes, ma’am.”

       Sergeant Burdick testified that he saw Wyatt exit the store after Villarreal exited

the store. Sergeant Burdick said, “I observed [Villarreal] reaching into his shorts’ pocket



       2   We need not address Villarreal’s second issue as it is not dispositive. See TEX. R. APP. P. 47.1.

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and then I observed a throwing motion.” On cross-examination, when asked, “And you

agree that you do not observe what was thrown,” Sergeant Burdick replied, “I don’t recall,

so I am not going to testify that I did when I can’t specifically remember that I did.”

Sergeant Burdick testified on redirect examination that Villarreal’s motion was “[a] toss

underhand” and “between parked vehicles.” The jury found Villarreal guilty of tampering

with evidence by concealment on the basis that he threw the bottle containing the

methamphetamine under the car. This appeal followed.

                                II.    STANDARD OF REVIEW

       In a sufficiency review, we examine the evidence in the light most favorable to the

prosecution to determine whether any rational fact finder could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010)

(plurality op.).   The fact finder is the exclusive judge of the facts, the credibility of

witnesses, and of the weight to be given testimony. Brooks, 323 S.W.3d at 899. We

must resolve any evidentiary inconsistencies in favor of the judgment. Id. We measure

the legal sufficiency of the evidence by the elements of the offense as defined by a

hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 314 (Tex. App.—

Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997)). Under a hypothetically correct jury charge, Villarreal committed the offense

of tampering with evidence, as charged in this case, if knowing that an offense had been

committed, he concealed the methamphetamine with the intent to impair its availability as

evidence in any subsequent investigation of or official proceeding related to the offense.

See Thornton v. State, 401 S.W.3d 395, 398 (Tex. App.—Amarillo 2013), rev’d on other

grounds, 425 S.W.3d 289 (Tex. Crim. App. 2014).

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        In this case, “the critical element is the act of concealment because [Villarreal] was

not charged with altering or destroying” the methamphetamine. See id. “Conceal” is not

defined in the Texas Penal Code; however, courts have construed it “to mean to hide, to

remove from sight or notice; to keep from discovery or observation.”                       Id.; see also

Rodriguez v. State, No. 13-15-00287-CR, 2016 WL 3626097, at *5 (Tex. App.—Corpus

Christi June 30, 2016, no pet.) (mem. op., not designated for publication).

                                         III.    CONCEALMENT

        By his first issue, Villarreal contends that the evidence is insufficient to establish

that he concealed the methamphetamine. Villarreal argues that “he merely dispossessed

himself of the evidence, thereby actually revealing it to” Wyatt.

        The facts of this case are similar to facts in Thornton v. State. See 401 S.W.3d at

397. In that case, the appellant and a friend were walking on the street where an adjacent

sidewalk was provided. Id. Plain clothes police officers patrolling the area decided to

stop the appellant and his companion to issue a citation. Id. The officers exited their

vehicle, displayed their guns and badges, and ordered the appellant to stop. Id. One of

the officers testified that “he observed [the appellant] reach inside a pocket and drop an

object, [later identified as a crack pipe,] before” walking towards the officers. Id.

        A jury convicted the appellant of tampering with evidence by concealment, and the

trial court sentenced the appellant to forty years’ confinement. Id. at 397–98. The

Amarillo Court of Appeals concluded that the evidence was insufficient to support the

jury’s finding that the appellant had concealed the evidence.3 Id. at 400. The court


        3 The Texas Court of Criminal Appeals reversed the court of appeals judgment on the basis that
the lower court was required to decide whether the appellant committed the lesser-included offense of
attempted tampering with evidence. Thornton v. State, 425 S.W.3d 289, 294 (Tex. Crim. App. 2014). The
Court of Criminal Appeals did not reverse the lower court’s conclusion that the evidence was insufficient to
show that the appellant had committed the offense of tampering with evidence. See id.

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reasoned that the evidence showed “that the [crack pipe] . . . was never concealed from

[the officer] because it never left his sight.” Id. at 399.

        Here, Wyatt testified that the pill bottle had not been concealed at any time and

that the bottle landed in plain view and was “not hidden in any way.” There is no evidence

that may have supported a finding that Villarreal hid the bottle, removed it from sight or

notice, or kept it from discovery or observation. Thus, considering the evidence in the

light most favorable to the verdict, we conclude that based on the plain and ordinary

meaning of “conceal” and on the evidence and reasonable inferences to be drawn

therefrom, no rational trier of fact could have found that Villarreal “concealed” the

evidence.4 See id.; see also Thornton, 425 S.W.3d at 307 (concurrence, J. Keller)

(“Whatever else ‘conceal’ might mean in the context of the tampering with evidence

statute, it at least means to remove from sight. And removal from a person’s sight occurs,

at least, when a person’s line of sight to the object in question is blocked.”); see also Rabb

v. State, 434 S.W.3d 613, 617–18 (Tex. Crim. App. 2016) (explaining that the evidence

did not support the jury’s finding that the appellant destroyed the evidence by swallowing

a baggie filled with drugs because there was “no evidence that the baggie and its contents




        4  Although the evidence showed that Villarreal had previously placed the drugs in a pill bottle and
put the pill bottle in his pants’ pocket, the evidence does not support a finding that Villarreal put the pills in
the bottle and then in his pocket, knowing that an offense had been committed, intending to impair its
availability as evidence in any subsequent investigation of or official proceeding related to the offense. See
Thornton v. State, 401 S.W.3d 395, 398 (Tex. App.—Amarillo 2013), rev’d on other grounds, 425 S.W.3d
289 (Tex. Crim. App. 2014) (citing TEX. PENAL CODE ANN. § 37.09(d)(1) (West, Westlaw through 2014 R.S.)).
If we were to conclude otherwise then all persons in possession of drugs would also be guilty of tampering
with evidence by concealment because in order to transport the drugs, it is necessary to place them in a
pocket, wallet, purse, or other container if the possessor wishes not to be seen carrying the drugs. See
Thornton, 425 S.W.3d at 303–06 (relying on facts that the appellant had palmed a crack pipe, among other
things, to conclude he committed offense of attempted tampering, and not relying on fact that the appellant
had originally had the crack pipe in his pocket); see also Thornton, 401 S.W.3d at 398, (finding no evidence
of tampering by concealment although the appellant had stored the crack pipe in his pocket prior to
removing and dropping it).

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were destroyed and no evidence on which a fact finder could base a reasonable inference

that they had been destroyed”). Accordingly, we sustain Villarreal’s first issue.

                      IV.     ATTEMPTED TAMPERING WITH EVIDENCE

       Our analysis does not end here, however. Although we have concluded that the

evidence does not support the jury’s finding that Villarreal committed the offense of

tampering with evidence, we must, as explained by the court of criminal appeals in

Thornton, next determine whether the evidence is nonetheless sufficient to support a

finding that Villarreal committed the lesser-included offense of attempted tampering with

evidence. See Thornton, 425 S.W.3d at 300. Under a hypothetically correct jury charge,

Villarreal committed such an offense if (1) knowing that an offense had been committed,

and with (2) the specific intent to conceal the bottle, and (3) the specific intent to impair

the availability of the bottle as evidence in a later investigation or proceeding, he (4) did

an act amounting to more than mere preparation that (5) tended but failed to result in

concealment of the bottle. See Rabb v. State, 483 S.W.3d 16, 21 (Tex. Crim. App. 2016)

(citing Thornton, 425 S.W.3d at 300–01).

       The evidence showed that Villarreal (1) took a bottle containing the

methamphetamine out of his pocket while running away from Walmart’s loss prevention

officer who was investigating Villarreal for shoplifting, (2) tossed the bottle “between

parked cars,” (3) used an underhanded toss, and (4) tossed the bottle “maybe a foot”

underneath a parked car. Viewing the evidence in the light most favorable to conviction

for attempted tampering with evidence, we conclude that it was reasonable for a fact

finder to determine that Villarreal had the specific intent to conceal the bottle containing

the methamphetamine, when he ran between parked cars and used an underhanded toss

to throw the bottle a foot underneath a parked car. In addition, the evidence showed that

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when Villarreal threw the bottle underneath the car, Villarreal was running away from a

loss prevention officer from Walmart and knew that Sergeant Burdick intended to question

him about shoplifting at the store. Thus, we conclude that the evidence supports a rational

finding that Villarreal had the specific intent to impair the availability of the contents of the

bottle as evidence in a later investigation or proceeding, he did an act amounting to more

than mere preparation, and his act of tossing the bottle tended but failed to result in

concealment of the bottle. See id.

                                     V.      CONCLUSION

       We reverse the trial court’s judgment convicting Villarreal of tampering with

evidence and render a judgment of acquittal on that charge and render a judgment

convicting appellant of attempted tampering with evidence by concealment, and we

remand for proceedings consistent with this memorandum opinion regarding the

attempted with tampering conviction. See TEX. R. APP. P. 43.2(c). We affirm the judgment

in all other respects.

                                                           /s/ Rogelio Valdez _________
                                                           ROGELIO VALDEZ
                                                           Chief Justice
Do Not Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
8th day of December, 2016.




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