Affirmed and Memorandum Opinion filed July 16 , 201 3

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 1 2

- 0 0 3 25

- CR

KENNETH JOEL LOFTIS , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 405 th District Court Gal veston County, Texas Trial Court Cause No. 10 CR 1834

M E M O R A N D U M O P I N I O N

A ppellant
, Kenneth Joel Loftis
, contends the evidence is legally insufficient to support his conviction of tampering with physical evidence

. We affirm.

I. B ACKGROUND

In June 2010, appellant and his girlfriend (“the decedent”) were in their apartment bedroom when they began arguing about missing cash

. It is undisputed
the couple had a history of argument s that had led to physical a ltercations.2

Appellant kept a loaded handgun on his nightstand for protection

. During the argument, he decided to remove the gun

. Appellant placed the gun in his front pants pocket and intended to take it to a neighbor’s apartment

. However, the decedent said she would put away the gun and reached into appellant’s pocket. While they struggled for possession of the gun, it accidentally discharged, shooting
the decedent. Appellant carried the decedent to the living room and was still holding the gun. He ran outside and approached a truck in which his brother and a friend named “Marcus” were sitting. A ppellant testified he tossed the gun inside the truck, saying
, “ Get it away from me
, ” and asking for help ; an officer testified appellant stated he told Marcus to leave with the gun

. Marcus left the scene with the gun. According to appellant, he was in shock and simply wanted to get the gun away from him, not conceal it from police.
Appellant returned to the decedent and called 9

- 1

- 1 , informing the operator he had shot his girlfriend

. Officers and paramedics arrived at the scene. Officers testified appellant w as extremely upset , told them he had shot the decedent, and
asked several times about her condition

. Officers asked appellant where the gun

was , and he responded a friend took it away from the scene. Appellant then told his mother to ask Marcus to return with the gun. Marcus returned and gave officers the gun.

T he decedent ultimately died from the gunshot wound. Appellant was charged with m

urder and tampering with physical e vidence. The jury acquitted appellant of murder but convicted him of tampering with physical evidence and
assessed punishment at eight years ’ confinement, probated.

II. S UFFICIENCY OF THE E VIDENCE

In his sole issue, appellant argues the evidence is legally and factually insufficient to support his conviction of tampering with physical evidence.3

A. Standard of Review and Relevan t Law Appellant argues the evidence is legally and factually insufficient to support
the verdict. Howe ver, t he Court of Criminal Appeals has abolished factual

sufficiency review. See Howard v. State
, 333 S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011); Young v. State , 358 S.W.3d 790, 805 (Tex. App.

— Houston [14 th Dist.] 2012 , pet. ref’d ) . Thus, we consider only appellant’s challenge to the legal sufficiency of the evidence. Lane v. State , 357 S.W.3d 770, 773 (Tex. App.

— Houston [14th Dist.] 2011, pet. ref’d).
When reviewing legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational fact finder
could have found the el ements of the offense beyond a reasonable doubt. Gear v.
State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia
, 443 U.S. 307, 318

– 19 (1979)). We do not sit as a thirteenth juror and may not substitute our judgment for that of the fact finder by re

- evaluating weight and credibility of the evidence. Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from
basic facts to ultimate facts. Id. This standard applies equally to both
circumstantial and direct evidence. Id.
As charged in the indictment, tampering with physical evidence means appellant, knowing an investigation i nto the decedent’s shooting was pending, concealed a handgun with intent to impair its availability as evidence in the investigation. See Tex. Penal Code Ann. § 37.09(a)(1) (West Supp. 2012).4

B . Analysis According to appellant, the foll owing facts negate a finding that he intended to impair the gun’s availability to officers : Appellant testified that, before the shooting, he had already planned to remove the gun from the apartment because he knew it was dangerous for the gun to be nearby during his altercation with the decedent

. After the shooting, he simply continued his plan by placing the gun in Marcus’s truck. A ppellant was in a state of shock and confusion and was scared of the gun

. When he placed the gun in the truck, he said
, “ Get [ the gun ] away from me ,”

mean ing he did not want to be near the gun, not that it should be hidden from officers

. Appellant asked others to help the decedent
, called 9

- 1

- 1 , and cooperated with officers

. At the crime scene, appellant told officers he had shot the decedent. Further,

w hen officers asked appellant where the gun was, he immediately informed them Marcus had it . Appellant then told his mother to call Marcus and ask him to return with the gun

. A ppellant also argues the j ury obviously credited hi s account of the incident
because they acquitted him of murder.
The jury was free to believe or disbelieve any portion of appellant’s testimony. See Jones v. State , 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) (“[A] jury is permitted to believe or disbeliev e any part of a witnes s’ testimony, including a defendant.”). Thus, the jury could have believed appellant’s testimony that he did not intend to kill the decedent but disbelieved his testimony that he did not intend to hide the gun.
Appellant admitted tha t, after bringing the decedent into the living room following the shooting, he ran outside yelling for help, threw the gun into Marcus’s truck, and said
, “Get it away from me.” According to an officer, when she asked appellant where the gun was, he respon ded the gun was no longer at the scene5

because he had given it to a friend and “ told him to leave. ” During his videotaped police interrogation, appellant stated he threw the gun in Marcus’s truck and said

“ ya’ll do something with the gun

. ”

Based on these facts, t he jury could hav e found appellant intended to conceal the handgun with intent to impair its availability as evidence in the investigation

. The jury could have reasonably believed tha t, had appellant intended only to rid himself of the gun, he would have thrown it outside and not taken time to place it
in the truck and t ell Marcus to leave

. The jury also could have reasonably believed
that , in a panicked state immediately following the shooting, appellant not only wanted to help the deceden t but desired to avoid culpability for the shooting by having the gun concealed

. T he fact appellant told officers where the gun was does not necessarily negate a finding that he initially intended to conceal the gun

. Accordingly, we overrule appellant’s sole issue

. 1

W e affirm the trial court’s judgment.

/ s / John Donovan Justice

Panel consists of Justices Frost, Christopher, and Donovan

. Do Not Publish

— Tex. R. App. P

. 47.2( b).

1 A ppellant a lso contends a compromise verdict likely occurred because the jury twice informed the trial court that they were deadlocked on the tampering

- with

- physical

- evidence charge but were nonetheless instructed by the trial court to continue deliberating. However, trial courts frequently instruct undecided juries to continue deliberating , and appellant expressly stated he had no objection to the trial court’s instructions to the jury

. W e reject appellant’s contention

.