Affirmed and Memorandum Opinion filed July 16, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00325-CR

KENNETH JOEL LOFTIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court 

Galveston County, Texas

Trial Court Cause No. 10CR1834

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

Appellant, Kenneth Joel Loftis, contends the evidence is legally insufficient 

to support his conviction of tampering with physical evidence. We affirm.

I. BACKGROUND

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 arguments that had led to physical altercations. 
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. Appellant 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 was 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.

The decedent ultimately died from the gunshot wound. Appellant was 

charged with murder and tampering with physical evidence. The jury acquitted

appellant of murder but convicted him of tampering with physical evidence and 

assessed punishment at eight years’ confinement, probated.

II. SUFFICIENCY OF THE EVIDENCE

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 Relevant Law

Appellant argues the evidence is legally and factually insufficient to support 

the verdict. However, the Court of Criminal Appeals has abolished factualsufficiency 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 [14th 

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 elements 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 into 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 following 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. 

Appellant 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,” 

meaning 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,

when 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.

Appellant also argues the jury obviously credited his 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 disbelieve any part of a witness’ 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 that, 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 responded the gun was no longer at the scene 
5

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, the jury could have found appellant intended to conceal 

the handgun with intent to impair its availability as evidence in the investigation. 

The jury could have reasonably believed that, 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 tell 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 decedent but desired to avoid culpability for the shooting by 

having the gun concealed. The 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

We 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 Appellant also 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. We reject appellant’s 

contention.