In The 

Court of Appeals 

Seventh District of Texas at Amarillo 

 

No. 07-24-00008-CR 

 

BEVERLY HOBBS UPSON, APPELLANT 

V. 

THE STATE OF TEXAS, APPELLEE 

On Appeal from the 87th District Court 

Freestone County, Texas1 

Trial Court No. 22-216CR, Honorable Patrick H. Simmons, Presiding 

September 16, 2024 

MEMORANDUM OPINION 

Before PARKER and DOSS and YARBROUGH, JJ. 

Appellant, Beverly Hobbs Upson, appeals her conviction for the offense of 

tampering with or fabricating physical evidence2 and resulting sentence of six years’ 

incarceration. We affirm the judgment of the trial court.

1 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this Court by the 

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should 

a conflict exist between precedent of the transferor court and this Court on any relevant issue, this appeal 

will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.

2 See TEX. PENAL CODE ANN. § 37.09(a)(1).
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FACTUAL AND PROCEDURAL BACKGROUND

On October 1, 2022, Appellant was arrested and taken to the Freestone County 

Jail to be processed. Upon arriving at the jail, Appellant was adamant that she needed 

to go to the restroom. Because there were no female officers available, Appellant was 

allowed to use the restroom but was instructed not to flush the toilet. An officer stood 

outside the restroom door listening until Appellant was finished. Immediately after 

Appellant exited, the officer inspected the restroom to “make sure there was nothing out 

of place.” The officer saw a large chunk of toilet paper at the bottom of the toilet that 

appeared to have something “slightly protruding” out of it. The officer moved the toilet 

paper with a pencil and saw “the tip of a glass cylinder.” Upon removing the item from 

the toilet and unwrapping it, the officer discovered a glass pipe that was approximately 

three inches long.

Appellant was subsequently indicted for the offense of tampering with physical 

evidence. After hearing evidence, a jury found Appellant guilty. After a brief punishment 

hearing, on November 30, 2023, the trial court sentenced Appellant to six years’ 

incarceration. The trial court issued a judgment reflecting the conviction and sentence. 

In it, the trial court assessed $330 in court costs and ordered Appellant to pay those court 

costs immediately. The record does not reflect that the trial court inquired into Appellant’s 

ability to immediately pay all or part of these court costs. On December 20, 2023, the trial 

court held a hearing on Appellant’s motion for bond pending appeal. At no point during 

this hearing did Appellant raise the issue that the trial court did not hold an on-the-record 

inquiry into her ability to immediately pay the $330 in court costs assessed by the 

judgment. Further, at this hearing, Appellant’s counsel stated that Appellant “has the 
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ability to make a $10,000 bond.” The record does not include any objection to the trial 

court’s failure to hold an on-the-record inquiry into Appellant’s immediate ability to pay the 

court costs. Appellant timely appeals the trial court’s judgment.

By her appeal, Appellant presents two issues. By her first issue, Appellant 

contends that the evidence was insufficient to support her conviction for the offense of 

tampering with physical evidence. Appellant contends, by her second issue, that the trial 

court erred by failing to conduct an on-the-record inquiry into her ability to immediately 

pay court costs.

ISSUE ONE: EVIDENTIARY SUFFICIENCY

By her first issue, Appellant contends that the evidence was not sufficient to 

support her conviction for the offense of tampering with physical evidence. Specifically, 

she argues that the evidence establishes that she merely abandoned the pipe rather than 

concealed it.3

The standard we apply in determining whether the evidence is sufficient to support 

a conviction is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 

2781, 61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 

2010). Under that standard, we consider all the evidence in the light most favorable to 

the verdict and determine whether, based on the evidence and reasonable inferences 

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

3 Appellant does not challenge the sufficiency of the evidence establishing that she put the pipe in 

the toilet, knew that an offense had been committed, knew that the pipe would be evidence in a subsequent 

trial, or intended to impair the pipe’s availability as evidence at a subsequent trial. See TEX. PENAL CODE 

ANN. § 37.09(d)(1). Her only challenge is to whether the evidence supports that she concealed the pipe.
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beyond a reasonable doubt. Jackson, 443 U.S. at 319; Queeman v. State, 520 S.W.3d 

616, 622 (Tex. Crim. App. 2017). Sufficiency of the evidence is measured against the 

elements of the offense as defined by a hypothetically correct jury charge. Thomas v. 

State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 

(Tex. Crim. App. 1997)). In our review, we must evaluate all the evidence in the record, 

both direct and circumstantial, regardless of whether that evidence was properly or 

improperly admitted. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); 

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We are also required to 

defer to the jury’s credibility and weight determinations because the jury is the sole judge 

of the witnesses’ credibility and the weight to be given their testimony. Winfrey v. State, 

393 S.W.3d 763, 768 (Tex. Crim. App. 2013). When the record supports conflicting 

inferences, we presume that the jury resolved any conflicts in favor of the verdict and will 

defer to that determination. Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 

2012).

The State alleged that Appellant committed the offense of tampering with physical 

evidence. Thus, as alleged, the State was required to prove that Appellant: (1) knowing 

that an offense had been committed, (2) concealed any thing, (3) with the intent to impair 

its availability as evidence in any subsequent investigation or official proceeding. TEX.

PENAL CODE ANN. § 37.09(d)(1). Concealment “requires a showing that the allegedly 

concealed item was hidden, removed from sight or notice, or kept from discovery or 

observation.” Stahmann v. State, 602 S.W.3d 573, 581 (Tex. Crim. App. 2020).

Appellant contends that she did not conceal the pipe from law enforcement; rather, 

she merely abandoned it in the toilet. She cites Stahmann as establishing that when an 
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item is abandoned in plain view, the defendant has not violated the tampering statute. 

See id. (while defendant intended to conceal pill bottle, abandoning it in plain sight does 

not constitute concealment). The State points to evidence that Appellant was alone in 

the restroom, she attempted to conceal the pipe by wrapping it in toilet paper and 

depositing it in the toilet, and the pipe was not in plain view when discovered. Because 

the pipe was not abandoned in plain view, we conclude that the evidence was sufficient 

to support a conclusion that the pipe was concealed as required by section 37.09(d)(1). 

Finding the evidence sufficient to support Appellant’s conviction for the offense of 

tampering with physical evidence, we overrule Appellant’s first issue.

ISSUE TWO: ON-THE-RECORD INQUIRY INTO ABILITY TO PAY FINE AND COSTS

By her second issue, Appellant contends that the trial court abused its discretion 

by failing to conduct an on-the-record inquiry into Appellant’s ability to pay the costs 

assessed by the judgment and requests that we remand the case to the trial court to

conduct such an inquiry. The State chose not to directly address this issue.

“[P]reservation of error is a systemic requirement that must be reviewed by the 

courts of appeals regardless of whether the issue is raised by the parties . . . .” Haley v. 

State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005). Recently, the Court of Criminal 

Appeals held that “because the [ability-to-pay] inquiry is not fundamental to the 

functioning of our adjudicatory system, [an appellant] forfeit[s] his complaint when he 

fail[s] to object in the trial court.” Cruz v. State, No. PD-0628-23, 2024 Tex. Crim. App. 

LEXIS 653, at *1 (Tex. Crim. App. Sept. 4, 2024).
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In the present case, Appellant did not object to the trial court’s failure to inquire, on 

the record, into Appellant’s present ability to pay court costs. Even though she obtained 

a hearing on her motion for bond pending appeal, she did not raise this issue. She did 

not file a post-judgment motion raising the issue. As such, we must conclude that 

Appellant failed to preserve her objection to the trial court’s failure to conduct an on-therecord inquiry into her present ability to pay court costs. Id.; see TEX. R. APP. P. 33.1. 

Consequently, we overrule Appellant’s second issue.

CONCLUSION

Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.

Judy C. Parker

 Justice

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