1 John T. Boyd, Chief Ju stice (Re t.), Seven th Court of Appeal s, sittin g by assi gnment.

Tex. Gov ’t Code A nn. §75.0 02(a)(1) (Vernon 2 005). NO. 07-04-0336-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E APRIL 17, 2006

______________________________ ADOLPHUS EUGENE BARROW, APPELLA NT

v. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 64 TH DISTRICT COURT OF HALE COUNTY; NO. B15416-0403; HON. ROBERT W. KINKAID, JR., PRESIDING

_______________________________ Before QUINN, C.J., REAVIS, J., and BOYD, S.J. 1 Appellant

Adolphus Eugene Barrow challenges his conviction of tamper ing w ith evidence and the court-assessed punishment of 45 years in the Institutional Di vision of the Department of Criminal Jus tice . In doing so, he contends that 1) the trial court erred i n denying his motion to suppress, and 2) the evidence was legally and factually insufficient to suppor

t the conv iction. We disag ree and a ffirm the j udgment o f the tria l court.2 Background On August 17, 20 03, Trooper Guadalupe Deluna observed a vehicle traveli ng toward him at a speed of 52 m.p.h. in a 45 m.p.h. zon e. H e initiated a traffic stop and, upon approaching the car, observed that in addition to the driver, there was a passenger in the front seat (appellant) and one in the back seat. He determined that the three men were brothers and he had the driver, Sammy Lee Barrow, sit in his patrol vehicl e while he ran a criminal history check. Sammy had several outstanding warrants which caused Deluna to p lace him under arrest. He also determined that both passengers had felon y convictions so Deluna requested backup. Deluna could not release the vehicle to thepassengers because they did not have driver’s licenses so he prepared to do an inventory search and asked appellant to step out of the vehicle. After

exitin g the veh icle, ap pellant was obse rved with his han d in hispocket. Deluna asked ap pellant to remove his hand, which appellant did, but he then returned his hand to the pocket. The same thing happened two o ther times with the officer asking appellant

to remove his hand from hi s pocket and appellant doing so initially but then returning his hand to his pocket. The third time ap pellanttookhis han d out of h is pocke t, he did so in a fist, which caused Deluna to believe that appell ant was holding something. Deluna decided to perfor m a pat-down search for his s afety. He ordered appellant to put his hand on the ca r and gra bbed it to position it, at which time appellant moved so mething from his left hand to his right hand and then put his rig ht hand to his mouth. The officer pried open appellant’s mouth and observed a smal l off-white colored rock which he believe to be either cocaine or

methamphetamine. Deluna ordered appellant to spit ou t the rock,3

but a ppellantswallowed it ins tead, afte r which a ppellan t was arre sted for ta mpering w ith evidence. Appellant was later taken to the hospital as a precaution for any ill effects he might hav e suffered from inge sting thesubstance, but herefused t reatment. Issue 1 - Suppression of Evidence Appellant

argues in his first issue that the trial court erred in failing to suppress the evidence discovered during the officer’s pat-down search of him be cause the search was illegal. We overrule the issue. We review the trial court’s ruling on a m otion to su ppress un der the standard announced in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Thus, we give almost total deference to the trial court’s findings of histor ic al fact and review de novo its applica tion of th e law to the facts. Id. at 89. Appellant

does not contest the ini tial detention of the vehicle and its occupan ts. Once a person is detained, a pat-down search is permissible when the poli ce officer reasonablysuspects

he is dealing with an armed and dangero us indiv idual. Davis v. State, 61 S.W.3d 94, 97 (Tex. App.--Amarillo 2001, no p et.); Ma ldonado v. State, 853 S.W.2d 746, 748 (Tex. App.--Ho uston [1 st Dist.] 19 93, no pe t.) (citing Terry v. Oh io, 392 U.S. 1, 27, 88 S.Ct. 186 8, 1883, 20 L.Ed.2 d 889 (19 68)). Theofficer n either has to be abs olutely certain thatthe indi vidual i s armed no r have pro bable ca use to arr est. Davis v. State, 61 S .W.3d at 97. The issu e is whe ther a rea sonably prudent p erson in the same circumstances would be warranted in believing that his safety or that of others is in dang er. Carmouche v. State, 10 S.W.3d 323, 3 29 (Tex. C rim. App. 2000) (the officer must have specificand articulable facts reasonably leading him to conclude that the suspect might possess aweapon)

.4

A pat-down was found to be just ified in Strickla nd v. Sta te, 923 S.W.2d 617, 620 ( Tex

. App.--Ho uston [1 st Dist.] 19 95, no pe t.) when t he suspe ct repeate dly attem pted to place his hands in his pockets despite being ordered to move them, there was a bulge in his pocket, a nd he ap peared n ervous. T he facts k nown by the offi cer here were that appellant

and the other two persons in t he vehicle were known felons, with one of them having outstanding warrants, appellant acted ner vou s, the officer knew appellant’s reputation in the community to not be that of a peaceful and law

abiding person in that he had drug offenses, and appellant more than once put his h ands in his pockets after being ordered by the officer to remove them. Thus, the officer did not rely solely on the fact that appella nt appea red nervo us, as ap pellant suggests

. We find the facts similar to those in Strickland and that Deluna was reason ably war r ant ed in believing that appellant might possess a weapon. Moreover, prior to the officer actually conducting the pat-down search, he observed appellant

with something in his left hand which he switched to his right upon the officer attempting to ste ady his left hand on the trunk of the car. The officer believed the object to be drugs or a weapon. Then appel lant immediately placed the object in his mouth. At that point, Deluna pried open appellant’s mouth. Once appellant put the contraband in his mouth, the offic er had pr obable cause to seize appellant and attempt to prevent destruction of the contraband. Sanders v. State, 855 S.W.2d 151, 152 (Tex. App.--Houston [14 th Dist.] 1993, no pet.). Wefind no error in t he trial court’s d enial of the motio n to supp ress. Issue 2 - Sufficiency of the Evidence In his second issue, appellant challen ges the l egal and factual sufficiency of the evidence to susta in his conv iction. A person commits th e offenseof tamper ing with2 In Lumpki n v. State , 129 S.W.3d 65 9, 663 (T ex. App. --Houston [1 st Dist.] 20 04, pet. ref’d), th e court stated that “pendin g” means “ impendin g, or abo ut to takeplace.”

5 physical evidenc e if, knowing that an investigation is pending or in progress

, he destroys

or conceals anything with intent to impair its verity, legibility, or availability as eviden ce in the investigat ion. Tex. Pen. Code Ann. §37.09(a)(1) (Vernon 2003). Appellant argues that there is no evidence or

insufficient evidence that he knew an investigation for narcotics was in progre ss. The standards by which we review challeng es to the sufficiency of the evidenc e are well e stablishe d. In reviewing the legal sufficiency of the evidence, we must determine, after reviewing the evidence in the ligh t most favorable to the verdict, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonab le doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1 979). In reviewing the factual sufficiency, the reviewing court examines a ll the evidence without the prism of “the light mo st favorab le to the prosecution” to determine whether the evidence is so weak

as to und erm ine confidence in the jury’s determination or the adverse finding is against the great

weight a nd prepo nderanceof the ev idence. Johnson v. State, 2 3 S.W.3d 1, 11 (Te x. Crim. App. 200 0). Under both standards, the factfinder may reasonably infer facts from the evid ence befo re it, credit the witnesses it cares to, disbelieve any or all of the testimon y proffere d, and we igh the e vidence in the ma nner it c hooses. Depauw v. State, 658 S.W.2 d 628, 63 3-34 (Tex . App.--Am arillo 1 983, pet. ref’d). Appellant

was indicted for concealing a controlled substance knowing “that an investigation was in progress” as oppo sed to merely pending. 2 An investigation for narcotics has been held not to be in progress when the officer approached a vehicle after6

a traffic stop and observed the driver ingesti ng a whi te substa nce. See Lumpkin v. State, 129 S.W.3d 65 9, 663 (T ex. App. --Houston [1 st Dist.] 2004, pet ref’d). However, at bar, the investigation had proceeded beyond one for a traffic violation at the time appellant swallowed the substance he put in his m outh. The officer already believed that appellant had either a weapon or narcotics in his han d. At the time he pried open appellant’s mouth, he observed what he believed to be either methamphetamine or cocaine. The officer then ordered appella nt to spi t out the substanc e, but in ste ad appell ant swal lowed i t. We believed the jury could rationally infer beyond a reasonable doubt that appellant knew he was bein g investi gated for drug pos session at the tim e he swallowed the evidence. This finding is also not against the great weight and preponderance of the evidence. Accordingly, appellant’s issue is overruled. We affirm t he judgme nt of the trial cou rt.

John T. Boyd Senior Ju stice Do not publish.