NUMBER 13-13-00067-CR

NUMBER 13-13-00068-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

FELIPE DIAZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 130th District Court 

of Matagorda County, Texas.

MEMORANDUM OPINION 

Before Chief Justice Valdez, Justices Benavides and Longoria

Memorandum Opinion by Justice Longoria

By two issues, appellant Felipe Diaz appeals his conviction for tampering with 

physical evidence and possession of less than one gram of cocaine with intent to 

deliver. See TEX. PENAL CODE ANN. § 37.09 (West 2011); TEX. HEALTH & SAFETY CODE 

ANN. § 481.112(b) (West 2010). We affirm. 
2

I. BACKGROUND

On May 19, 2010, Chief David Miles of the Palacios Police Department went to 

appellant’s house with a group of officers to execute a search warrant. Chief Miles 

obtained the warrant after a confidential informant told him that appellant was selling 

cocaine out of his house. Chief Miles knocked on the front door and announced that 

they were police and there to execute a search warrant. When there was no answer, 

Chief Miles instructed Officer Robin Riley to try to enter through the back door while 

Chief Miles tried to break down the front door. Officer Riley gained entry first, identified 

herself as a police officer with a search warrant, and encountered appellant “coming out 

of [a] room across the hallway.” Officer Riley testified that appellant said that he had 

just been in the bathroom. Officer Riley brought appellant to the front of the house at 

the same time that Chief Miles finally gained entry through the reinforced front door by 

using a sledgehammer. Chief Miles asked appellant why he didn’t answer the door, and 

appellant repeated that he “was in the bathroom.” Chief Miles and the officers placed 

handcuffs on appellant and commenced a search of the house. The search disclosed a 

safe in appellant’s bedroom that contained, among other things, a rock of crack cocaine, 

various jewelry, bank wrappers for one-thousand dollar bills, and “marked” money used 

by police in a previous controlled drug buy.1

 In the bathroom that appellant was exiting 

when Officer Riley encountered him, police found cocaine around the rim of the toilet 

and flecks of cocaine in the toilet water. The State charged appellant with one count of 

tampering with physical evidence and one count of possession of less than one gram of 

 1 The search also disclosed a “shrine” in a cabinet with candles burning over a newspaper picture 

of Chief Miles, a list of the names of other Palacios police officers who had participated in prior narcotics 

investigations, and a separate list of the names of people in the local community who might be police 

“snitches.” 
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cocaine with intent to deliver. See TEX. PENAL CODE ANN. § 37.09; TEX. HEALTH &

SAFETY CODE ANN. § 481.112(b). The jury found appellant guilty and assessed 

punishment at twenty years’ imprisonment and a $5,000 fine on the evidence tampering 

charge, and two years in state jail and a $5,000 fine on the possession charge.2 This 

appeal followed. 

II. DISCUSSION

A. Sufficiency of the Evidence 

We understand appellant’s brief as raising two related points that the evidence 

was insufficient to prove that: (1) appellant destroyed cocaine by flushing it down the 

toilet, and (2) appellant knew that a narcotics investigation was ongoing at the time he 

allegedly flushed the cocaine down the toilet. 

1. Standard of Review and Applicable Law

In a legal sufficiency review, “a reviewing court views all of the evidence in the 

light most favorable to the verdict to decide whether any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” Garcia v. State, 

367 S.W.3d 684, 686–87 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 

307, 319 (1979)). “The reviewing court must give deference to the responsibility of the 

trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 

9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). This same standard 

applies to both circumstantial and direct evidence because “[c]ircumstantial evidence is 

as probative as direct evidence in establishing the guilt of an actor, and circumstantial 

 2 The tampering with evidence charge was enhanced to a second-degree felony by a prior felony 

conviction for delivery of a controlled substance. See TEX. PENAL CODE ANN. § 12.42(a) (West 2011). 
4

evidence alone can be sufficient to establish guilt.” Merritt v. State, 368 S.W.3d 516, 

525 (Tex. Crim. App. 2012) (citing Hooper, 214 S.W.3d at 13). If the record supports 

conflicting inferences, we presume that the fact finder resolved the conflict in favor of 

the prosecution and defer to that resolution. Id. (citing Jackson, 443 U.S. at 326). 

We measure the sufficiency of the evidence supporting a conviction by the 

elements of the offense, which “are defined by the hypothetically correct jury charge for 

the case.” Ramos v. State, 407 S.W.3d 265, 269 (Tex. Crim. App. 2013) (citing Malik v. 

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “Such a charge would be one that 

accurately sets out the law, is authorized by the indictment, does not unnecessarily 

increase the State's burden of proof or unnecessarily restrict the State's theories of 

liability, and adequately describes the particular offense for which the defendant was 

tried.” Malik, 953 S.W.2d at 240. 

The Texas Court of Criminal Appeals has explained that: 

Three elements define the offense of tampering with physical evidence: 

(1) knowing that an investigation or official proceeding is pending or in 

progress; (2) a person alters, destroys, or conceals any record, document, 

or thing, (3) with the intent to impair its verity, legibility or available as 

evidence in the investigation or official proceeding. 

Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008) (citing TEX. PENAL CODE 

ANN. § 37.09(a)(1)). The statute requires “two different culpable mental states—

knowledge and intent.” Id. (citing Stewart v. State, 240 S.W.3d 872, 784 (Tex. Crim. 

App. 2007)). “The statute requires the knowledge of an investigation and the intent to 

impair the thing’s availability as evidence.” Id. Under the Texas Penal Code, “[a] 

person acts knowingly, or with knowledge, with respect . . . to circumstances 

surrounding his conduct when he is aware of the nature of his conduct or that the 
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circumstances exist.” TEX. PENAL CODE ANN. § 6.03(c) (West 2011). “A person acts

intentionally, or with intent, with respect . . . to a result of his conduct when it is his 

conscious objective or desire to . . . cause the result.” Id. § 6.03(a). 

The indictment in this case specifically alleged that appellant “knowing that an 

investigation was in progress, to-wit: [n]arcotics investigation, intentionally or knowingly 

[did] destroy drugs to-wit: cocaine, with intent to impair its availability as evidence in the 

investigation.”

2. Analysis

Appellant first argues that the evidence is insufficient to show that he actually 

destroyed cocaine by flushing it down the toilet. Appellant argues that the State did not 

prove that he flushed the cocaine because it could have been introduced into the toilet 

at any time during the day. Furthermore, if appellant had flushed the toilet immediately 

before Officer Riley encountered him it would still have been refilling when Officer Riley 

entered, but Officer Riley testified that she did not recall if she heard the sound of water 

running as she entered the house. Appellant contends that this indicates that the 

cocaine was introduced into the toilet at an earlier time because Officer Riley recalled 

hearing other noises during her entry, such as the noise from window air conditioning 

units and the sounds of Chief Miles attempting to break through the front door with a 

sledgehammer. Appellant’s argument is essentially that there is no direct evidence that 

he flushed cocaine down the toilet, but the State may prove its case by circumstantial 

evidence. As noted above, “[c]ircumstantial evidence is as probative as direct evidence 

in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient 

to establish guilt.” Merritt, 368 S.W.3d at 525. “In circumstantial evidence cases, it is 
6

not necessary that every fact and circumstance ‘point directly and independently to the 

defendant’s guilt; it is enough if the conclusion is warranted by the combined and 

cumulative force of all the incriminating circumstances.’” Temple v. State, 390 S.W.3d 

341, 359 (Tex. Crim. App. 2013) (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. 

Crim. App. 1993)). The State presented evidence that: (1) Officer Riley encountered 

appellant coming out of the bathroom where cocaine was found around the rim of the 

toilet bowl and in the toilet water; (2) appellant twice told the police that he “was in the 

bathroom” at the time that Chief Miles knocked on the door; and (3) there was no other 

person in the house. Viewing this evidence as we must in the light most favorable to 

the verdict, we conclude that a reasonable jury could infer from this evidence that 

appellant had flushed cocaine down the toilet just prior to the time that Officer Riley 

detained him in the hallway.3

 See Garcia, 367 S.W.3d at 686–87.

Appellant next argues that there was no evidence that “[a]ppellant was aware the 

police were there for the purpose of investigation of drugs,” so the State failed to prove 

that he acted with the requisite intent to destroy the cocaine in order to impair its use as 

evidence. See TEX. PENAL CODE ANN. § 37.09(a)(1). Appellant argues that he did not 

hear either Chief Miles or Officer Riley identify themselves as police officers or, 

alternatively, that the announcement was a general statement that an investigation was 

 3 We interpret appellant’s issue on appeal as arguing that there is no evidence that it was 

appellant who flushed the cocaine down the toilet, but appellant’s issue also contains language that could 

be read as challenging whether the evidence is sufficient to prove that appellant ever possessed any 

more cocaine than what was found around the rim of the toilet bowl and in the toilet water, meaning that 

no cocaine was actually destroyed. To the extent that appellant is making that argument, we conclude 

that a reasonable jury could infer that appellant had flushed cocaine down the toilet based on the 

evidence that there was cocaine found around the rim of the toilet bowl and in the toilet water, and 

appellant had just exited the bathroom. See Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 

2013) (observing that “[i]n circumstantial evidence cases, it is not necessary that every fact and 

circumstance point directly and independently to the defendant’s guilt; it is enough if the conclusion is 

warranted by the combined and cumulative force of all the incriminating circumstances”). 
7

in progress and was not sufficient to inform appellant that he was being investigated for 

drugs. Regarding the first part of the argument, the evidence is sufficient for the jury to 

draw a reasonable inference that appellant heard the announcements and 

acknowledged hearing them when he told both Officer Riley and Chief Miles that the 

reason he did not answer the door was because he was “in the bathroom.” 

Regarding the second part of the argument, the Texas Court of Criminal Appeals 

has expressly rejected the argument that the charged “person must be ‘aware that the 

thing he altered, destroyed, or concealed was evidence in the investigation as it existed 

at the time of the alteration, destruction, or concealment.’” Williams, 270 S.W.3d at 144 

(quoting Pannell v. State, 7 S.W.3d 222, 223 (Tex. App.—Dallas 1999, pet. ref’d)). The 

court distinguished Pannell, and held that the statute only requires two mental states: 

“knowledge of an investigation and the intent—the conscious objective—to impair a 

thing’s availability as evidence in the investigation.” Id. The statute does not require 

that the destroyed thing be the type of evidence that the investigation in progress seeks, 

only that the defendant knew that an investigation was in progress and intended to 

prevent the destroyed thing’s use as evidence in that investigation. See id. at 145 

(holding that the evidence was sufficient to convict the defendant for evidence 

tampering when the defendant, knowing that a weapons investigation was in progress, 

stepped on a crack pipe that had fallen from his clothes with the intent to prevent its use 

as evidence against him in the investigation). In this case, there was sufficient evidence 

to prove that appellant knew an investigation was underway based on the 

announcements made by Chief Miles and Officer Riley, which appellant acknowledged 

hearing while he was in the bathroom where cocaine was later discovered. 
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In sum, we conclude that the evidence is sufficient for a rational jury to find that 

appellant destroyed cocaine by flushing it down the toilet when he knew that an 

investigation was in progress and that he did so with the intent to destroy the cocaine in 

order to impair its use as evidence as alleged in the indictment. See id.; Garcia, 367 

S.W.3d at 686–87. We overrule appellant’s first issue. 

B. Ineffective Assistance of Counsel

By his second issue, appellant argues that his trial counsel performed below the 

standard for competent representation guaranteed under the state and federal 

constitutions because counsel essentially admitted in his closing argument that 

appellant was guilty of both the possession and the tampering with evidence charges.

1. Standard of Review and Applicable Law

We evaluate claims of ineffective assistance under the standards set forth by the 

United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). 

See Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). 

Under the Strickland standard, appellant must show by a preponderance of evidence 

that: (1) trial counsel’s representation fell below an objective standard of 

reasonableness; and (2) there is a reasonable probability that the result of the 

proceeding would have been different but for the attorney’s deficient performance. 

Strickland, 466 U.S. at 687. “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Ex parte Ellis, 233 S.W.3d 324, 330–31 (Tex. 

Crim. App. 2007). If an appellant fails to prove one prong of the test, we do not need to 

address the other prong. See Strickland, 466 U.S. at 697; Garcia v. State, 57 S.W.3d 

436, 440 (Tex. Crim. App. 2001).
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When evaluating the quality of trial counsel’s representation, we look to “the 

totality of the representation and the particular circumstances of each case in evaluating 

the effectiveness of counsel.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 

1999). Even though “a single egregious error of omission or commission” can constitute 

ineffective assistance, the Texas Court of Criminal Appeals has been hesitant to 

designate any particular error as ineffective assistance per se. Id. We apply “a strong 

presumption that counsel's conduct fell within the wide range of reasonable professional 

assistance.” Id. Allegations of ineffectiveness must therefore be “firmly founded in the 

record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Id. 

(citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Direct appeal 

is usually inadequate to make an ineffectiveness claim because the record is frequently 

undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). The 

Texas Court of Criminal Appeals has explained that “trial counsel should ordinarily be 

afforded an opportunity to explain his actions before being denounced as ineffective.” 

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (citing Bone v. State, 77 

S.W.3d 828, 836 (Tex. Crim. App. 2002)). Unless counsel had an opportunity to explain 

his trial strategy, Texas appellate courts should “not find deficient performance unless 

the challenged conduct was ‘so outrageous that no competent attorney would have 

engaged in it.’” Goodspeed, 187 S.W.3d at 392 (quoting Garcia, 57 S.W.3d at 440).

2. Analysis

Appellant argues that his trial counsel was ineffective because he essentially 

conceded appellant’s guilt on both the possession charge and the tampering charge. 

Trial counsel made this statement as part of his closing argument to the jury:
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Is it beyond a reasonable doubt to believe that [appellant] was in there 

using crack cocaine and he hears a noise, hears the banging, the airconditioners are running, it’s early in the morning and he takes whatever 

he’s got, shakes it down in there, puts the can in there and goes out to find 

out who it is? Is that beyond a reasonable doubt? Is that – is that a real 

possibility? There certainly are other possibilities, and that’s what the 

State’s here about. But there are alternate possibilities as well and I 

suggest to you that my client being a user not a dealer was doing 

something to that effect at the time.

Later in his closing statement, counsel also said that “yes, [appellant is] guilty of 

possession of a controlled substance.” Appellant argues that these statements 

constituted an admission of guilt on both charges and that the admission constituted 

deficient performance because “[f]or an advocate to admit his client’s guilt is tantamount 

to the prosecution of his own client.” We interpret appellant as asserting that his case is 

one of the “narrow class of cases where the particular circumstances ‘are so likely to 

prejudice the accused that the cost of litigating their effect in a particular case is 

unjustified.’” United States v. Williamson, 53 F.3d 1500, 1510 (5th Cir. 1995) (quoting

United States v. Cronic, 466 U.S. 648, 687 (1984)). If a defendant can prove that such 

circumstances exist in his case, we will presume prejudice. Id. at 1511. The Fifth 

Circuit has held that “the admission by counsel of his client’s guilt to the jury[] 

represents a paradigmatic example of the sort of breakdown in the adversarial process 

that triggers a presumption of prejudice.” Id. 

We disagree that trial counsel’s admissions rose to the level of an admission of 

guilt. In cases where courts found that a defendant’s trial counsel performed deficiently 

by admitting the defendant’s guilt during closing argument, the defendant’s trial counsel 

admitted the only contested issues. Compare United States v. Swanson, 943 F.2d 

1070, 1074 (9th Circ. 1991) (finding that trial counsel caused a “breakdown in our 
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adversarial system of justice” when he admitted that “there was no reasonable doubt” 

concerning whether the defendant was guilty of the bank robbery charge) with Hathorn 

v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992) (finding that it was not ineffective 

assistance to concede that the defendant killed his father but argue to the jury that the 

defendant was actually guilty of a lesser included offense); see Williamson, 53 F.3d at 

1511 (collecting cases similar to Swanson). In this case, in contrast, counsel contested

elements of both of the charged offenses. 

Regarding the first offense, the State charged appellant with possession of 

cocaine in an amount less than one gram with intent to deliver. See TEX. HEALTH &

SAFETY CODE ANN. § 481.112(b). The hypothetically correct jury charge for that offense 

required the State to prove that appellant: (1) knowingly or intentionally, (2) possessed, 

(3) cocaine, (4) in an amount of less than one gram, (5) with the intent to deliver the 

cocaine. Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. 

ref’d). Appellant’s trial counsel admitted that appellant possessed a controlled 

substance, which is a lesser included offense of possession with intent to deliver, but 

contested the issue of whether appellant intended to deliver the cocaine to anyone.4 

Regarding the second charge, the offense of tampering with evidence has three 

elements: “(1) knowing that an investigation or official proceeding is pending or in 

progress; (2) a person alters, destroys, or conceals any record, document, or thing, (3) 

 4 Appellant argues additionally that this strategy had “no value” because the offense of

possession of less than a gram of cocaine, and possession of less than a gram of cocaine with intent to 

deliver, are both state jail felonies with the same range of punishment. See TEX. HEALTH & SAFETY CODE 

ANN. §§ 481.112(b), 481.115(b) (West 2010). However, as we explained, it is not ineffective assistance 

of counsel to admit guilt but argue that a defendant is actually guilty of a lesser included charge. See 

Hathorn v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992); see also Brown v. State, 866 S.W.2d 675, 

681 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (“A defendant’s trial counsel does not necessarily 

render ineffective assistance of counsel even by conceding the defendant’s guilt.”). We note that even 

though appellant challenges his trial counsel’s decision to admit that appellant possessed cocaine,

appellant does not challenge the sufficiency of the evidence to support the verdict on that charge.
12

with the intent to impair its verity, legibility or available as evidence in the investigation 

or official proceeding.” Williams, 270 S.W.3d at 142. Appellant’s trial counsel argued 

strongly that even if appellant did destroy the cocaine, he could not have acted with the 

intent to impair its use as evidence in an investigation because he was not aware of an 

investigation. Because appellant has not established that his trial counsel admitted his 

guilt, we conclude that appellant has not established the “the sort of breakdown in the 

adversarial process that triggers a presumption of prejudice.” Williamson, 53 F.3d at 

1511. Accordingly, we overrule appellant’s second issue.

III. CONCLUSION

We affirm the judgment of the trial court. 

NORA L. LONGORIA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

23rd day of January, 2014