In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-14-00355-CR 

JOHNTA MARTEE MCNEAL, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 84th District Court 

Hutchinson County, Texas 

Trial Court No. 10700, Honorable William D. Smith, Presiding 

 

July 17, 2015 

 

MEMORANDUM OPINION 

 

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

A jury convicted appellant Johnta Martee McNeal of possession of four grams or 

more but less than 200 grams of methamphetamine with intent to deliver1and 

 

1 TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(d) (West 2010). An 

offense under section 481.112(d) is punishable by imprisonment for life or for a term of 

not more than 99 years or less than 10 years, and a fine not to exceed $100,000. TEX.

HEALTH & SAFETY CODE ANN. § 481.112(e) (West 2010). On a showing of a prior felony 

conviction, the minimum term of confinement is increased to fifteen years. TEX. PENAL 

CODE ANN. § 12.42(c)(1) (West Supp. 2014).
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tampering with physical evidence.2 Concurrent prison terms of twenty years, enhanced, 

and five years were assessed. Finding the evidence was insufficient to prove appellant 

committed the offense of tampering with physical evidence or its attempt, we will modify 

the judgment to render an acquittal on that charge. As modified, we will affirm the 

judgment of the trial court. 

Background

A Borger motorcycle police officer stopped a car owned by appellant and driven 

by his younger brother for traffic violations. Appellant was the only passenger. The 

officer approached the driver’s side and there spoke with appellant’s brother. 

Appellant and his brother each produced identification cards but could not open 

the glove compartment which they believed contained proof of insurance. Meanwhile, 

the officer saw a marijuana pipe in the vehicle’s ashtray. The officer also noticed on the 

center console a scale of a type he believed was typically used to weigh drugs for sale. 

When asked if the vehicle contained “anything illegal” appellant’s brother responded 

that he smoked “weed” and used the scale “to weigh [his] marijuana.” 

At the officer’s direction, appellant’s brother stepped out of the vehicle and the 

officer conducted a pat-down search. After obtaining consent, the officer also searched 

the brother’s pockets, finding some $700 in cash. Of the cash, $500 was bound 

together with a “female’s hair tie.” 

 

2 TEX. PENAL CODE ANN. § 37.09(a) (West Supp. 2014). An offense under this 

section is a felony of the third degree. Id. at § 37.09(c). It is punishable by confinement 

in prison for two to ten years and a fine of not more than $10,000. TEX. PENAL CODE 

ANN. § 12.34(a),(b) (West 2011).
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The officer then directed appellant’s brother to sit down while he turned his 

attention to appellant. By this time a backup officer in a patrol car arrived. At his 

request appellant exited the vehicle. 

The officer began questioning appellant. As they spoke appellant looked away. 

Suddenly he withdrew objects from his pocket. Saying they were “pipes,” he dropped 

them. A glass pipe, which the officer testified was a methamphetamine pipe, broke. 

The other item was part of a crack pipe. The officer testified by that point he intended to 

arrest appellant for tampering with physical evidence and possession of paraphernalia. 

The officer added that appellant “started to kind of bolt a little bit.” The video 

recording from the backup officer’s car shows appellant began a quick movement away 

from the officers. The backup officer grabbed appellant, placed him on the ground, and 

handcuffed him. 

Searching appellant’s person, the officer discovered a Kool cigarette box in his 

underwear. Inside the box was a “large” clear bag containing a “white crystal 

substance” the officer believed was methamphetamine. A photograph in evidence 

shows the bag on the brother’s digital scale. It registers 23.1 grams. Department of 

Public Safety testing later showed the substance contained methamphetamine and 

weighed 22.44 grams.

The officer testified he had completed several law-enforcement programs, 

including narcotics training, and had participated in seventy to eighty drug arrests. The 

majority of these arrests were for methamphetamine. In the officer’s opinion, a user of 

methamphetamine might consume a gram or perhaps a gram-and-a-half per day. He 
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further observed that, based on a user’s consumption of one gram a day, the quantity of 

methamphetamine appellant possessed would last twenty-three days. The officer also 

testified that an ounce equates to roughly twenty-eight grams. At the time of appellant’s 

arrest, methamphetamine in Borger sold for $100 per gram and was priced on a “point 

for point” system. For example, he continued, a tenth of a gram sold for $10, two-tenths 

for $20, and so on. 

After appellant’s arrest, during a search of his vehicle, officers found a notice 

indicating appellant was behind on his car loan payments. Officers also located three 

cell phones although at trial the officer could not recall whether the phones came from 

the person of appellant, his brother or the vehicle. Two CDs were found bearing the 

handwritten titles “crack” and “cocaine.”

The jury was charged on the law of parties. It returned verdicts convicting 

appellant of possession with intent to deliver a controlled substance and tampering with 

physical evidence. The court imposed the sentences noted and signed a single 

judgment. 

Analysis

First Issue: Intent to Deliver

Appellant contends that the evidence was insufficient to establish the “intent to 

deliver” element of the possession offense.

3

 

3

It was the State’s burden to prove appellant knowingly possessed with intent to 

deliver a controlled substance listed in Penalty Group 1. TEX. HEALTH & SAFETY CODE 

ANN. § 481.112(a) (West 2010). Here the controlled substance was methamphetamine. 
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In a sufficiency review, we examine the evidence to determine whether any 

rational trier of fact could have found the essential elements of the offense beyond a 

reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing 

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

Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the 

evidence in the light most favorable to the verdict and assume the trier of fact resolved 

conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a 

manner that supports the verdict. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. 

App. 2007).

‘“Deliver’ means to transfer, actually or constructively, to another a controlled 

substance . . . . The term includes offering to sell a controlled substance . . . .” TEX.

HEALTH & SAFETY CODE ANN. § 481.002(8) (West Supp. 2014). Intent to deliver may be 

proved with circumstantial evidence, including evidence that the defendant possessed 

the contraband. Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th 

Dist.] 2006, pet. refused). “Intent can be inferred from the acts, words, and conduct of 

the accused.” Id. at 326 (quoting Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. 

App. 1995)). The expert testimony of an experienced law enforcement officer may be 

used to establish an accused’s intent to deliver. Id. The factors to be considered in 

determining whether a defendant possessed contraband with an intent to deliver include 

the nature of the location where the defendant was arrested, the quantity of drugs the

defendant possessed, the manner of packaging the drugs, the presence or absence of 

drug paraphernalia, whether the defendant possessed a large amount of cash, and the 

_____________________

Methamphetamine is listed in Penalty Group 1. TEX. HEALTH & SAFETY CODE ANN. § 

481.102(6).
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defendant’s status as a drug user. Kibble v. State, 340 S.W.3d 14, 18-19 (Tex. App.—

Houston [1st Dist.] 2010, pet. refused); see also Williams v. State, 902 S.W.2d 505, 507 

(Tex. App.—Houston [1st Dist.] 1994, pet. refused). This list of factors is not exclusive, 

nor must they all be present to establish a defendant’s intent to deliver. Kibble, 340 

S.W.3d at 19. 

We find the evidence permitted a rational jury to determine appellant had the 

intent to deliver the methamphetamine he possessed. The jury could have determined 

the officer was experienced in handling narcotics arrests, particularly those involving 

methamphetamine. A marijuana pipe and a scale admittedly used for weighing drugs 

were in plain view inside the vehicle. On his person, appellant possessed pipes for 

smoking crack cocaine and methamphetamine, but there was no evidence of 

intoxication. Appellant was delinquent in repaying his car loan. Three cell phones were 

present. In appellant’s underwear were 22.44 grams of methamphetamine, about a 23-

day supply for a user. Appellant’s brother possessed about $700 cash, $500 of it bound 

together. Five hundred dollars approximated the street-value difference between an 

ounce of methamphetamine and the amount found in appellant’s underwear. The jury 

was charged on the law of parties. In this way, during closing argument, the prosecutor 

argued, “[s]o one has got the dope and one is holding the money. Aid and assist to aid. 

Sounds like a simple business transaction with two parts of the same business. One is 

delivering and one is collecting.” The jury was entitled to agree.

Appellant’s first issue is overruled.
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Second Issue: Tampering with Physical Evidence

Appellant next contends the evidence was insufficient to establish he concealed 

the methamphetamine with knowledge an investigation was in progress. The indictment 

alleged “[Appellant] did then and there knowing that an investigation was in progress, to 

wit: the Defendant was being detained by law enforcement, did conceal a thing, to wit: a 

baggie containing methamphetamine with intent to impair its availability as evidence in 

said investigation[.]” The application paragraph of the charge inquired whether 

appellant tampered “with physical evidence knowing that an investigation was in 

progress, to wit: [appellant], while being detained by law enforcement, did conceal a 

thing, to wit: a baggie containing methamphetamine, with intent to impair its availability 

as evidence in said investigation[.]”

The offense of tampering with physical evidence contains three elements: 

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

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. PENAL CODE ANN. § 37.09(a)(1) (West Supp. 2014); Rabb v. State, 434 S.W.3d 

613, 616 (Tex. Crim. App. 2014) (citing Williams v. State, 270 S.W.3d 140, 142 (Tex. 

Crim. App. 2008)).

We read appellant’s brief to include the contention the evidence does not show 

when he put the cigarette package into his underwear, and we agree with the 

contention. The evidence shows merely the fact of the traffic stop, the officer’s initial 

attention to appellant’s brother, and the eventual discovery of the cigarette box from the 
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search of appellant after he was cuffed. The State contends the jury could have 

inferred he concealed the box in his underwear after the officer initiated the traffic stop. 

We agree appellant had the opportunity to do so between the initiation of the traffic stop 

and appellant’s removal from the car. But there is no evidence he did so during that 

time, and we disagree the evidence permits a reasonable inference of it. See Hooper v. 

State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007) (conclusion reached by speculation 

may not be completely unreasonable but is not sufficiently based on facts or evidence to 

support finding beyond reasonable doubt). On cross-examination, the officer 

acknowledged that as he approached the vehicle after the stop, he watched for “overt or 

furtive movements” and saw none. When asked if he saw appellant shift in his seat in 

the vehicle the officer responded he did not. He added “not in an abnormal amount of 

(sic) fashion, no.” We also have carefully reviewed the video taken from the backup 

officer’s patrol car and see no movements suggesting appellant concealed the box while 

in the view of the camera.

The State also argues appellant admitted during punishment-phase testimony his 

guilt of concealing the methamphetamine in his underwear and argues he is now 

effectively estopped to complain the evidence was insufficient to support his conviction 

for tampering with evidence. We need not decide whether appellant admitted the 

indicted offense during his punishment-phase testimony. “[A] defendant who testifies at 

the punishment stage of trial and admits his guilt does not forfeit his right to complain on 

appeal about errors occurring during the guilt stage.” Jacobson v. State, 398 S.W.3d 

195, 196-97 (Tex. Crim. App. 2013) (overruling De Garmo v. State, 691 S.W.2d 657 

(Tex. Crim. App. 1985)).
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We now consider whether appellant could have been convicted of a lesserincluded offense. Rabb, 434 S.W.3d at 618; Thornton v. State, 425 S.W.3d 289, 299-

300 (Tex. Crim. App. 2014).

For this determination, the Court of Criminal Appeals prescribes two questions: 

“1) in the course of convicting the appellant of the greater offense, must the jury have 

necessarily found every element necessary to convict the appellant for the lesserincluded offense; and 2) conducting an evidentiary sufficiency analysis as though the 

appellant had been convicted of the lesser-included offense at trial, is there sufficient 

evidence to support a conviction for that offense?” Rabb, 434 S.W.3d at 620 (quoting 

Thornton, 425 S.W.3d at 299-300). If the answer to either question is no, we are not 

authorized to reform the judgment. But if the answers to both are yes, we are required 

to reform the judgment to reflect a conviction for the lesser-included offense. Id.

Under the criminal attempt statute, a person “commits an offense if, with specific 

intent to commit an offense, he does an act amounting to more than mere preparation 

that tends but fails to effect the commission of the offense intended.” TEX. PENAL CODE 

ANN. § 15.01(a) (West 2011). A person commits the offense of attempted tampering 

with or fabricating physical evidence if, with specific intent to commit the offense of 

tampering with or fabricating physical evidence, he does an act amounting to more than 

mere preparation that tends but fails to effect the commission of the offense. Beck v. 

State, No. 10-08-00365-CR, 2010 Tex. App. LEXIS 7265, at *8-9 (Tex. App.—Waco 

Sept. 1, 2010, pet. refused) (mem. op. on reh’g, not designated for publication). 
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For the same reason appellant could not have been convicted of the greater 

offense, he could not have been convicted of the lesser-included offense of attempt. 

The record is devoid of evidence that while an investigation was in progress appellant, 

acting with specific intent to commit tampering with evidence, performed any 

preparatory act tending, but failing, to effect commission of tampering with physical 

evidence. The response to question number two of the Thornton inquiry is no. Rabb,

434 S.W.3d at 620. Appellant’s second issue is sustained. 

Conclusion

We reverse appellant’s conviction for tampering with physical evidence, and 

render a judgment of acquittal of that offense. We modify the trial court’s judgment to 

reflect appellant’s acquittal of the charge of tampering with physical evidence. As 

modified, the judgment is affirmed. 

James T. Campbell

 Justice

Do not publish.