NO. 07-09-0229-CV 

 

 IN THE COURT OF APPEALS 

 FOR THE SEVENTH DISTRICT OF TEXAS 

 AT AMARILLO 

 PANEL C 

 NOVEMBER 30, 2010 

 ______________________________ 

CLIFTON YOUNG, 

 Appellant 

 v. 

 THE STATE OF TEXAS, 

 Appellee 

 _______________________________ 

 FROM THE 137th DISTRICT COURT OF LUBBOCK COUNTY; 

 NO. 2008-421,326; HON. CECIL G. PURYEAR, PRESIDING 

 _______________________________ 

Memorandum Opinion

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

 Clifton Young was convicted of tampering with evidence. In challenging that 

conviction, he contends the evidence is insufficient to sustain it and that the trial court 

erred in failing to grant his motion for mistrial during the punishment phase. We affirm 

the judgment. 

 
2 

Background 

 On September 21, 2008, Officer Brian Johnston was watching a house in 

Lubbock known for drug activity. He observed appellant drive up to the residence, go 

inside for a few minutes, and then leave. In driving away, appellant failed to signal his 

intent to enter the lane of travel and failed to stop at a stop sign. Johnston executed a 

traffic stop and noticed that appellant was nervous and lacked a valid driver’s license. 

While speaking to appellant, Johnston also noticed a rocklike substance in the 

corner of appellant’s mouth. The officer’s past experience with rock cocaine caused 

him to believe that the substance was cocaine. He had appellant get out of the vehicle 

and asked him to spit out the substance. Johnston then observed that appellant 

appeared to have swallowed a portion of the rock because there were crumbs on his 

mouth and the rock looked smaller. He explained to appellant the difference between 

tampering with evidence and possession of drugs. Johnston tried to place his asp in 

appellant’s mouth to keep him from swallowing the rest but was unsuccessful. 

Johnston warned appellant that he could possibly lose his life by swallowing the drugs. 

Appellant finally admitted that he had swallowed “a dub” meaning a $20 piece of crack. 

The officer transported appellant to the emergency room. 

 When appellant provided a history to the emergency room nurse, he informed 

her he was being chased by the cops and swallowed cocaine to hide the evidence. 

Appellant was given activated charcoal to absorb the cocaine or help him to vomit the 

contents of his stomach. At trial, appellant denied he had anything in his mouth and 

claimed he went along with everything the officer said hoping he would be let go when it 

was discovered that there was no cocaine. 
3 

 Sufficiency of the Evidence 

We review the sufficiency of the evidence under the standard discussed in 

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Brooks v. 

State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS 1240 at *25-26 (Tex. Crim. App. 

October 6, 2010). Appellant contends the evidence is insufficient because it shows that 

he destroyed the evidence as opposed to concealing it and because the only 

investigation in progress was a traffic investigation. 

 Appellant was charged with intentionally or knowingly concealing a piece of 

evidence while knowing that a police investigation was in progress and with the intent to 

impair the availability of the evidence in the investigation. See TEX. PENAL CODE ANN.

§37.09(a)(1) (Vernon Supp. 2010) (defining tampering with evidence to occur when a 

person, knowing that an investigation or official proceeding is pending or in progress, 

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). To 

conceal means to prevent disclosure or recognition of or to place out of sight. Lujan v. 

State, No. 07-09-0036-CR, 2009 Tex. App. LEXIS 7121, at *5 (Tex. App.–Amarillo 

September 9, 2009, no pet.) (not designated for publication). It also means to hide or 

keep from observation, discovery, or understanding. Hollingsworth v. State, 15 S.W.3d 

586, 595 (Tex. App.–Austin 2000, no pet.). By swallowing cocaine that might be 

observable to the officer during a conversation, a rational trier of fact could find beyond 

a reasonable doubt that appellant sought to prevent its disclosure or to place it out of 

sight. See Lewis v. State, 56 S.W.3d 617, 625 (Tex. App.–Texarkana 2001, no pet.) 

(finding the evidence sufficient to show the defendant concealed evidence when he put 
4 

it in his mouth and swallowed it). There was no showing that the rock of cocaine would 

necessarily be destroyed by swallowing it.1 Moreover, evidence was before the jury that 

appellant admitted to the officer that he had swallowed cocaine, and appellant told 

hospital personnel that he swallowed cocaine in an attempt “to hide evidence.” 

 Appellant relies upon Hollingsworth v. State, in which the officers were 

investigating a knife fight when they observed the defendant, who fit one of the 

descriptions, ordered him to stop, and watched him duck behind a dumpster and spit 

out two white objects. Hollingsworth v. State, 15 S.W.3d at 589-90. There was 

testimony that persons often carry cocaine in their mouths, and the court found that 

there was no evidence that he concealed the cocaine in his mouth in an attempt to 

impair its availability as evidence. Id. at 595. Likewise, appellant argues that because 

Johnston did not see him place the cocaine in his mouth, he could simply have been 

carrying it there. 

 However, once Johnston saw a white object in appellant’s mouth, he explained to 

him the difference between possession of drugs and tampering with evidence and told 

appellant to spit it out. In response, appellant swallowed it. These facts are different 

from those in Hollingsworth and justify a finding that appellant attempted to conceal the 

evidence. 

 Appellant also argues that the only investigation in progress at the time appellant 

swallowed the drug was a traffic investigation and not a narcotics investigation. See

Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.–Houston [1st Dist.] 2004, pet. ref’d) 

 

1

A nurse testified that it would pass through the system either by being vomited or through a 

bowel movement. 
5 

(holding the evidence was not sufficient to show the officer’s investigation concerned 

narcotics when the officer saw the defendant ingesting a white substance as he 

approached the defendant’s car as part of a traffic stop); Pannell v. State, 7 S.W.3d 

222, 223 (Tex. App.–Dallas 1999, pet. ref’d) (holding that the defendant was not being 

investigated for possession of marijuana when the officer saw him throw a marijuana 

cigarette and empty a baggie from a car window as he was being stopped for 

speeding). However, the title of the investigation and the evidence concealed need not 

match as long as the accused intends to impair the availability of the evidence in an 

investigation he knows is in progress. Williams v. State, 270 S.W.3d 140, 145 (Tex. 

Crim. App. 2008). Furthermore, the jury may infer an accused’s knowledge about the 

existence of an ongoing investigation from circumstantial evidence such as acts, words, 

and conduct. Lujan v. State, 2009 Tex. App. LEXIS 7121, at *5. 

 Prior to completely swallowing the drug, appellant was stopped after leaving a 

house known for drug activity which appellant admitted at trial. Appellant knew the 

officer saw an object in his mouth. The officer explained the difference to appellant 

between possession of a narcotic and tampering with evidence. The officer told 

appellant to spit out the object. And the officer attempted with his asp to prevent 

appellant from swallowing the object. From this, it could rationally be inferred that 

appellant knew that a police investigation was in progress and that such investigation 

was related to narcotics. See Lewis v. State, 56 S.W.3d at 625 (evidence was sufficient 

to show the accused knew an investigation was pending because he refused to spit the 

object out or otherwise allow its removal after being ordered to do so). We overrule 

appellant’s first two issues. 
6 

 Jury Argument 

 In his third issue, appellant complains of the trial court’s failure to grant his 

motion for mistrial due to improper closing argument by the State. That argument 

consisted of the prosecutor referring to appellant as “a known drug user, a known drug 

paddler [sic].” When appellant objected, the State offered to rephrase without a ruling 

from the court. Appellant then requested that the trial court instruct the jury to disregard 

the statement which the trial court did. Subsequently, appellant moved for a mistrial on 

the basis the statement was “intending to suggest that he was delivering drugs.” That 

motion was denied. 

 We review the trial court’s denial of a motion for mistrial for abuse of discretion. 

Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). A mistrial is required only 

when improper argument is clearly calculated to inflame the minds of the jury and is of 

such a character as to suggest the impossibility of withdrawing the impression produced 

in the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999); 

Brock v. State, 275 S.W.3d 586, 591 (Tex. App.–Amarillo 2008, pet. ref’d). In making 

our analysis, we presume that the jury followed the instruction to disregard. Weinn v. 

State, 281 S.W.3d 633, 642 (Tex. App.–Amarillo 2009), aff’d, 2010 Tex. Crim. App. 

LEXIS 793 (Tex. Crim. App. June 30, 2010); Drake v. State, 123 S.W.3d 596, 604 (Tex. 

App.–Houston [14th Dist.] 2003, pet. ref’d). 

 Appellant complains that new facts were injected into the record when the State 

referred to him as a drug peddler. He further relies upon Simpson v. State, 493 S.W.2d 

793 (Tex. Crim. App. 1973), in which the State implied through questions asked of a 

witness during the punishment phase that the defendant had sold drugs on three 
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occasions, although there was no evidence to support that conclusion. Here, the 

prosecutor offered to rephrase as soon as the objection was made and, after the court 

instructed the jury to disregard, the prosecutor explained that he “meant someone 

dealing with the drugs, panhandling, voluntarily consuming them.” This indicates that 

the remark was an inadvertent mistake, and no further mention was made of appellant 

being a drug dealer. Moreover, appellant was sentenced to a punishment of six years 

out of a possible range of two to ten years2

 with evidence in the record of several 

previous convictions. Under these circumstances, we find that the instruction to 

disregard, which we presume was followed, was sufficient to cure the error. 

 Having overruled appellant’s issues, we affirm the judgment. 

 Per Curiam 

Do not publish. 

 

 

2

Appellant was also assessed a fine of $5,000 out of a possible $10,000.