NO. 12-07-00279-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

NOEL S. HARRIS, § APPEAL FROM THE 241ST

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Noel S. Harris appeals his conviction for tampering with evidence, for which he was

sentenced to imprisonment for sixteen years. In three issues, Appellant challenges the sufficiency

of the evidence and argues that his sentence constituted cruel and unusual punishment. We affirm.

BACKGROUND

Appellant was charged by indictment with tampering with evidence. The indictment further

contained an enhancement allegation that Appellant had been previously convicted of the felony

offense of driving while intoxicated. Appellant pleaded “not guilty,” and the matter proceeded to

a jury trial. At the outset of trial, a hearing was held on Appellant’s motion to suppress. The trial

court denied Appellant’s motion, and the parties proceeded with the presentation of evidence. 

Officer Thomas Guerrero oftheTyler Police Department testified as the State’s first witness.

Guerrero testified that on January 17, 2007, he was a trainee in the first phase of the department’s

field training program underthe supervision of Officer Damon Swan. Guerrero further testified that

at 7:00 p.m. on the day in question, he and Swan were on patrol when they observed Appellant

riding a bicycle on the wrong side of the road and without proper illumination. Guerrero stated that

he stopped Appellant for the violations. Guerrero further stated that when he asked Appellant

questions concerning hisidentity, Appellant mumbled his answers and appeared to attempt to avoid
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opening his mouth. Guerrero testified that Appellant’s behavior concerned him because he

suspected Appellant was trying to consume something illegal or had something in his mouth that he

was not supposed to have. Guerrero further testified that, as a result of Appellant’s behavior and

because they were in a known “high-drug” area, he began to investigate whether Appellant was in

possession of any type of controlled substance. Guerrero stated that he asked Appellant what was

in his mouth and that Appellant responded that it was a “marijuana roach.” Guerrero explained to

the jury that a marijuana roach is whatever is left of a marijuana joint or any kind of a marijuana

blunt after it has been smoked. Guerrero further stated that he looked into Appellant’s mouth

multiple times and observed a green leafy substance, which based on his training and experience he

believed to be marijuana. Guerrero testified that they were not able to recover the marijuana as

evidence because Appellant intentionally or knowingly destroyed it by chewing it and swallowing

it, thereby impairing its availability as evidence in the investigation of his possession of marijuana.

Officer Damon Swan testified as the State’s next witness. Swan’s testimony was largely

consistent with Guerrero’s testimony. Swan testified that when Guerrero initiated contact with

Appellant, Swan observed from the vehicle that Appellant was chewing on something. Swan further

testified that he approached Appellant and asked him to spit out whatever was in his mouth. Swan

stated that as Appellant spat, he observed small green flakes in the spittle that he suspected were

marijuana. Swan further stated that the green flakes he observed were not retrievable for evidence.

Swan testified that Appellant admitted to them that he had been chewing a “roach,” which Swan

explained he understood to be the remnants of a partially smoked marijuana cigarette. Swan further

testified that it appeared to him that Appellant ate the marijuana in question to conceal it.

Following Swan’s testimony, the State rested. Appellant moved for a directed verdict, which

the trial court denied. Thereafter, Appellant rested. Ultimately, the jury found Appellant to be

“guilty” as charged. The matter proceeded to a jury trial on punishment. At the outset of

Appellant’s trial on punishment, Appellant pleaded “true” to the enhancement allegation in the

indictment. Following the presentation of evidence, the jury assessed Appellant’s punishment at

imprisonment for sixteen years. The trial court sentenced Appellant accordingly, and this appeal

followed.
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EVIDENTIARY SUFFICIENCY

In his first and second issues, Appellant argues that the evidence is both legally and factually

insufficient to support that he knew at the time he ate the substance that an investigation and official

proceeding were impending or in progress. 

Legal Sufficiency

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the

Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307,

315–16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1,

6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge

is whether any rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871

S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to

the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A

successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court.

See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).

The sufficiency of the evidence is measured against the offense as defined by a hypothetically

correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a

charge would include one that “accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant is tried.” Id. 

In the case at hand, to support Appellant’s conviction for tampering with evidence, the State

was required to prove either that (1) Appellant, knowing that an investigation was pending or in

progress, altered, destroyed, or concealed any thing with intent to impair its verity, legibility, or

availability as evidence in the investigation or (2) Appellant, knowing that an offense had been

committed, altered, destroyed, or concealed any thing with intent to impair its verity, legibility, or

availability as evidence in any subsequent investigation of or official proceeding related to the

offense. See TEX.PENAL CODE ANN. § 37.09(a)(1), (d)(1) (Vernon Supp. 2007). Though Appellant

was charged pursuant to Subsections 37.09(a)(1) and 37.09(d)(1), he has made no argument with

regard to the commission of the offense of tampering with evidence as set forth in Section
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37.09(d)(1). If we determine there is legally sufficient evidence to support Appellant’s conviction

pursuant to Section 37.09(d)(1), we need not address the sufficiency of the evidence to support his

conviction pursuant to Section 37.09(a)(1). 

According to Guerrero’s testimony, he stopped Appellant for a violation of the traffic code.

Guerrero stated that when he asked Appellant questions concerning his identity, Appellant mumbled

his answers and appeared to attempt to avoid opening his mouth. Guerrero testified that Appellant’s

behavior concerned him because he suspected Appellant was trying to consume something illegal

or had something in his mouth that he was not supposed to have. Guerrero further testified that, as

a result of Appellant’s behavior and because they were in a known “high-drug” area, he began to

investigate whether Appellant was in possession of any type of controlled substance. Guerrero stated

that he asked Appellant what was in his mouth and that Appellant responded that it was a “marijuana

roach.” Guerrero explained to the jury that a marijuana roach is whatever is left of a marijuana joint

or any kind of a marijuana blunt after it has been smoked. Guerrero further stated that he looked into

Appellant’s mouth multiple times and observed a green leafy substance, which based on his training

and experience he believed to be marijuana. Guerrero testified that they were not able to recover the

marijuana as evidence because Appellant intentionally or knowingly destroyed it by chewing it and

swallowing it, thereby impairing its availability as evidence in the investigation of his possession of

marijuana. Additionally, Swan testified that when Guerrero initiated contact with Appellant, Swan

observed from the vehicle that Appellant was chewing on something. Swan further testified that he

approached Appellant and asked him to spit out whatever was in his mouth. Swan stated that as

Appellant spat, he observed small green flakes in the spittle that he suspected were marijuana. Swan

further stated that the green flakes he observed were not retrievable for evidence. Swan testified that

Appellant admitted to them that he had been chewing a “roach,” which Swan explained he

understood to be the remnants of a partially smoked marijuana cigarette. Swan further testified that

it appeared to him that Appellant ate the marijuana in question to conceal it.

Examining the aforementioned evidence in the light most favorable to the verdict, we

conclude that the jury could have determined beyond a reasonable doubt that Appellant knew that
 See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a) (Vernon 2003). 1

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he had committed the offense of possessing marijuana and, with the intention of impairing the 1

marijuana’s availability as evidence in any subsequent investigation related to the offense, destroyed

or concealed the marijuana. Therefore, we hold that the evidence was legally sufficient to support

the jury’s verdict. Appellant’s first issue is overruled.

Factual Sufficiency

Turning to Appellant’s contention that the evidence is not factually sufficient to support the

jury’s verdict, we must first assume that the evidence is legally sufficient under the Jackson

standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all

of the evidence weighed by the trial court that tends to prove the existence of the elemental fact in

dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939

S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the trial

court’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922

S.W.2d at 133, our evaluation should not substantially intrude upon the trial court’s role as the sole

judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where

there is conflicting evidence, the trial court’s verdict on such matters is generally regarded as

conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d).

Ultimately, we must ask whether a neutral review of all the evidence, both for and against the

finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence

in the trial court’s determination, or the proof of guilt, although adequate if taken alone, is greatly

outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000);see also

Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (evidence is factually insufficient

only when reviewing court objectively concludes that the great weight and preponderance of the

evidence contradicts the verdict).

In the instant case, Appellant argues generally that the evidence tending to show that no

investigation was “impending or in progress” when Appellant swallowed the marijuana was far

greater than any evidence supporting that such an investigation was underway. Appellant makes no

argument with regard to evidence supporting his conviction pursuant to Texas Penal Code, section
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37.09(d)(1). As in our consideration of Appellant’s legal sufficiency challenge, we need not address

Appellant’s argument with regard to Subsection 37.09(a)(1) if we conclude that the evidence is

factually sufficient to support his conviction pursuant to Subsection 37.09(d)(1).

We have reviewed the record in its entirety. We iterate that our evaluation should not

substantially intrude upon the trial court’s role as the sole judge of the weight and credibility of

witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the

trial court’s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d

at 96. Our review of the record as a whole, with consideration given to all of the evidence, both for

and against the jury’s verdict, has not revealed to us any evidence that causes us to conclude that the

proof of Appellant’s guilt as charged under subsection 37.09(d)(1) is so obviously weak or is

otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong

or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury’s

verdict. Appellant’s second issue is overruled.

CRUEL AND UNUSUAL PUNISHMENT

In his third issue, Appellant contends that the sixteen year sentence imposed on him for

tampering with evidence constitutes cruel and unusual punishment under both the Texas and United

States constitutions. However, Appellant made no timely objection to the trial court raising the issue

of cruel and unusual punishment and has, therefore, waived such an issue on appeal. See Rhoades

v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver with regard to rights under the Texas

Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to

rights under the United States Constitution); see also TEX R. APP. P. 33.1. 

However, even absent waiver, we conclude that Appellant's sentence did not constitute cruel

and unusual punishment. Appellant was convicted of tampering with evidence. See TEX. PENAL

CODE ANN. § 37.01(a), (d)(1). The punishment range for such an offense, considering the

enhancement allegation, is between five and ninety-nine years, or life. See TEX. PENAL CODE ANN.

§§ 12.33(a), 12.42, 37.09(c) (Vernon 2003 & Supp. 2007). Here, the sentence imposed by the trial

court falls within the range set forth by the legislature. Id. Therefore, the punishment is not

prohibited as cruel, unusual, or excessive per se. See Harris v. State, 656 S.W.2d 481, 486 (Tex.
 Under this test, the proportionality of a sentence is evaluated by considering (1) the gravity of the offense

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and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the

sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292, 103 S. Ct. at

3011. 

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Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis v. State,

905 S.W.2d 655, 664 (Tex. App.–Texarkana 1995, pet. ref’d).

Nonetheless, we have considered the threshold question of whether Appellant’s sentence is

grossly disproportionate to the crime. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.),

cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v. State, 989

S.W.2d 842, 845–46 (Tex. App.–Texarkana 1999, no pet.); see also Harmelin v. Michigan, 501

U.S. 957, 1005, 111 S. Ct. 2680, 2707, 115 L. Ed. 2d 836 (1991); Solem v. Helm, 463 U.S. 277,

298–300, 103 S. Ct. 3001, 3013–15, 77 L. Ed. 2d 637 (1983). In reaching this conclusion, we are

guided by the holding in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980),

in which the Supreme Court upheld the appellant’s mandatory life sentence under a prior version of

the Texas habitual offender statute for a conviction of obtaining $120.75 by false pretenses. Id., 445

U.S. at 266, 100 S. Ct. at 1135. Since here the offense committed by Appellant—tampering with

evidence—is no less serious than any of the offenses committed by the appellant in Rummel, while

Appellant’s sixteen year sentence is far less severe than the life sentence upheld by the Supreme

Court in Rummel, it follows that if the sentence in Rummel was not unconstitutionally

disproportionate, then neither is the sentence assessed against Appellant in the case at hand.

Therefore, since we do not find the threshold test to be satisfied, we need not apply the remaining

elements of the Solem test. Appellant’s third issue is overruled. 2

DISPOSITION

Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s

judgment.

 JAMES T. WORTHEN 

 Chief Justice

Opinion delivered July 23, 2008.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)