### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00266- CR

Russel Bradley Tu rner, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 51ST JUDICI AL DISTRICT NO. A-1 5-1 010- SB , H ONO RAB LE B ARB ARA L. WALTH ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N 1

A jury found appellant Russel Br adley Turner g uilty of possession of a controlled substance, methamphetamine, with i n t en t t o d eli ver in an amount of four g rams or more but less than 200 g rams, a first-deg ree felony , see Tex. Hea lth & Safety Code § 481.112(d), tampering with phy sical evidenc e, a third-deg ree felony , see Tex. Penal Code § 37.09(a) , (c) , and evading arr est or detention with a vehicle, a third-deg ree felony , see id. § 38.04(a) , (b)( 2)(A)

. All three offe nses wer e enhanc ed with a previous felony conviction. See id. § 12.42. The jury assessed punishment at 30 y ear s in prison for possession of a controlled substance with intent to deliver, 10 y ear s in prison and a $2,500 fine for tampering with phy sical evidenc e, and 10 y ear s in prison and a $2,500 fine for

Notice of appea l for this case was orig inally filed in this Court in Dec ember 2016, at which 1 time the case wa s t ra n s ferred to the El Paso Court of Appea ls in compliance with a docketequalization order issued by the Texas Supreme Court. On April 12, 2018, the Texas Supreme Court order ed that cer

tain case s be transfe rre d back to this Court from the El Paso Court, and we consider this appea l pursuant to that order

. See Misc. Docke t No. 18-9054 (Tex. Apr. 12, 2018) (per curia m).evading arr est or detention. The trial court rende red judgme nts consistent with the jury ’s verdic ts.

I n fo u r p o i n ts of err or, Turner contends on appea l that the evidenc e is insufficient to support h i s convictions. We will affirm the tria l court’s judg ments of conviction.

BACK GR OUND 2
I n October 2015, Offic er Mark Ba ker of the Tom Gre en County Sheriff’ s Office observe d a vehic le that he be lieved wa s speeding

. Offic er B aker activate d his radar , and his rada r indicated that the vehicle was trave ling at 44 miles per hour, which was faster than the posted speed limit of 30 miles per hour. Offic er Ba ker activate d his emer g ency lights and tried to pull the vehicle

over. The vehicle sped up, reac hing a maxi mum speed of a

bout 60 miles per hour, and made two
turns befor e coming to a st op. Offic er Bake r ordered the dri v er , wh o was identified as Turner , to step out of the vehicle. After a backup office r arr ived, Offic er Ba ker place d Turner under arr est for evading arr est with a vehic le.

Offic ers then conducte d an i n v en tory of Turner ’s vehicle befor e impounding it. They discovere d a z ippere d bag containing a dig ital scale a nd numerous sm all clea

r bagg ies. The scale had a resid u e o n i t t h at Offic er Ba ker believed to be illega l drug s. The office rs also found three Pall Mall cig are tte packa g es in the floorboar d. Offic er Ba ker suspected that Turner might have thrown something out of the vehicle window befor e pulling over and asked another office r to sear ch the are a. I n a ditch, the offic er fo u nd a Pall Mall cig are tte packa g e containing a g lass pipe with residue on it that Offic er Ba ker believed to be methamphetamine. T he off icer also found a pur

ple

The fac ts rec ited in this opinion are taken from the testimony and exhibi ts admitted at trial. 2 2zipped bag containing 13 bag g ies, ea ch o f wh ich contained a white substance that Offic er Ba ker believed to be methamphetamine. L ater tests indicated that the su b s t an ce i n t h e bag g ies was in fac t methamphetamine.

Turner was late r tried a

nd convicted, a

nd this appeal followe d.

STANDARD OF REVIEW
I n evalua ting the sufficie ncy of the evidenc e supporting a jury ’s verdic t, we view the evidenc e in the light most favor able to the verdic t and ask whether “‘a ny rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.’” Montgomery v. State , 369 S.W .3d 188, 192 (Tex. Crim. App. 2012) (quoting Brooks v. State , 323 S.W .3d 893, 902 n.19 (Tex. Crim. App. 2010)). We are instructed only to “ensur e that the evidenc e prese nted supports the jury ’s ver dict and that the state has pre sented a leg ally sufficie nt case of t he offense charg ed.” Id. “The jury is the sole judg e of c redibility and we ight to be attache d to the t estimony of wit nesses,” and if “the rec ord supports conflicting i n fer ence s, we presume that the jury resolved the conflicts in favor of

the ver dict, and we defe r t o that deter mination.” Dobbs v. State , 434 S.W .3d 166, 170 (Tex. Crim. App. 2014). “Circumstantial evidenc e is as probative as direc t evidenc e in establishing the g uilt of the actor, a

nd circ umstantial evidence alone may be suff icient to establish g uilt.” Id.

DISCUSSIO N Evadi ng Arre st or De tention

I n his first point of err or, Turner contends that the evidenc e was insufficient to support his conviction for evading arr est or detention with a vehicle because the evidence d i d not

3establish that he kn ew t h at Offic er Ba ker was try ing to arr est or detain him. A person commits evading arr est or detention with a vehicle “if he intentionally flee s from a person he knows is a peac e office r or fede ral specia l investiga tor attempting lawfully to arr est or detain him” and uses a vehicle while in flig ht. See Tex. P enal Code § 38.04( a), ( b)(2) (A).

At trial, Offic er Ba

ker testified that he activate d his sire n and overhe ad lights when try ing to pull Turner over for speeding. He further testified that, instead of stopping, Turner spe d
up and drove for about eig ht-tenths of a mile (which included two turns ) befor e pulling over. Offic er Ba

ker’ s vehicle rec orded a video of the incident, which we have revie wed. The video shows Offic er Ba

ker parke d on the rig ht side of the road at night. Turner ’s vehicle drives past Offic er Ba ker and stops at a stop sign. As Turner resumes moving forwa rd past the stop sign, Offic er Ba ker immediately follows him and activate s his overhe ad lights. Offic er Ba ker’ s came ra rec orded his speed and shows that Offic er Bake r and Turner travel ed at speeds up to around 60 miles per hour during the pursuit. On the video, Turne r make s a sharp rig ht-hand turn, later g oes around a curve , and then pulls over.

Viewing this evidenc e in the light most favor able to the jury ’s verdic t, we conclude that the evidenc e was sufficie nt to support Turner ’s conviction for evading arr est or detention with

a vehicle beca

use a rea sonable fac t-finder could have found that Turner intentio n al l y fl ed from a
person whom he knew to be a p ea ce office r lawfully attempting to arr est or detain him. When Offic er Ba

ker beg an to pursue T urner and ac tivated his overhe ad lights, Turner sped off, trave ling
at speeds of

up to 60 miles per hour on a small r ural road at night. Offic er Ba ker followed closely behind Turner , from which the jury could have inferr ed that Turner was able to see th e flashing

4lights. Although Turner testified that he did not pull over at first beca use he thought the vehicle behind him was an ambulance rathe r than a police office r, the jury could have conclude d that Turner attempted to flee afte r he saw Office r B aker activate his overhea d lights. See Dobbs , 434 S.W .3d

a t 1 7 0 ( n o ti n g th a

t “ [t ]h e ju r y is th e s o le ju d g e o f c r e d ib il it y a n d w e ig h t to b e a tt a c h e d to th e te s ti mo ny of witnesses”) ; see also State v. Garcia-Cantu , 253 S.W .3d 236, 245 n.43 (Tex. Crim. App. 2008) (stating that use of police emer g ency lights constitutes show of authority ); Deloach v. S t ate , No. 03-13-00049- CR, 2015 WL 756759, at *2 (Tex. App.—Austin Fe b. 19, 2015, pet. ref ’d) (mem.
op., not desig nate d fo r p u blication) (same) ; Gilbert v. State , 874 S.W .2d 290, 295 (Tex. App.—Houston [1st Dist.] 1994, pet. re f’d) (same)

.

Be cause we conclude that the evidenc e was sufficie nt to support Turner ’s conviction for e vading arr est or dete ntion with a vehicle, we overr ule his first point of err or.

Tam pering w ith Physical Evidence

I n his second and third poi n t s o f err or, Turner contends that the evidenc e was insufficient to support his conviction for tampering with phy sical evide n ce. “A person commits

an offe nse if, knowing that an investiga tion or officia l proce eding is pending or in pr og ress, he

. . . alters, destroy s, or conce als any rec ord, document, or thing with intent to impair its verity , leg ibilit y ,

or availability as evidenc e in the investiga tion or officia l proce eding

. . . .” Tex. Penal Code § 37.09(a) (1). Her e, the indictment alleg ed that Turner , “knowing t h at an investiga tion was in
prog ress, to-wit: a traff

ic stop, intentionally and knowing ly conce al[ed] a bag with intent to impair its availability

as evide nce in the inve stiga tion.”

5Turner arg ues that the evidenc e was insufficient to show that he threw the contra band
out of his vehicle that an office r later found on the side of the road. At trial, Offic er Ba ker testified that he suspected Turner threw objects out of his window d uring the pursuit and that he asked another office r to sear ch the are a over which the pursuit had occur red. The other office r testified that he found the contra

band in the ditch at the side of the road along the path of the pursuit. He also testified that the g rass around the contra band looked fre shly mown and that there was no de bris or
g rass on top of the contra band. An office r also testified that the video shows objects being thrown out of Turne r’s window. 3

Viewing this evidenc e in the light most favor able to the jury ’s verdic t, we conclude that a rea sonable fac t-finder could have found that Turner threw the contra band from his vehicle’ s window. The contra

band was ly ing on top of fre shly mown g rass, from which the jury could have inferr ed that it had not been ly ing there very long. Moreove r, the office r discovere d the contra band along the path of the pursuit on a rura l r oad at nig ht with no other traf fic ne arby , sug g esting that it

was Turner who threw the objects there

. I n addition, one of the objects containing contra band was

a Pall Mall cig are tte packa g e, and office rs found three Pall Mall cig are tte packa g es in the floorboar d of Turne r’s ve hicle.

Turner also arg ues t hat, even if he did throw t he contr ab an d out of hi s window, he did not know there was an investiga tion in prog ress when he did so. Howeve r, as discussed above,

Having revie wed the v i d eo, we cannot detec t the objects that the office rs alleg edly saw 3 being thrown out of Turner ’s window, but w e also cannot conclude with c erta inty that the offic ers wer e u nable to detec t the objects on the video. One of the office rs testified that they viewed the video on a lar g e scr een, a nd it is poss ible that this allowed them to detec t the objects.

6we have conclude d that the jury could have found that T u rn er did know that there was an

“investig ation or official proce eding ,” see id. , in prog ress, be cause he would have seen the office r pursuing him with overhe ad lights flashing and known, or should have known, that he was speeding

. Turner further arg ues that, in any event, h is decision to throw the contra band out of the window

was not rela ted to the pending investiga tion for speeding , but rathe r to his desire to distance himself from the contra

band. Howeve r, Turner has cited no authority for the proposition that a person can only tamper wi t h ev i d ence if the evidenc e he conce aled or destroy ed was direc tly rela ted to the offe nse for which he was being investiga ted, and we are not awa re of any . I ndeed, the Texas Court of Criminal Appea ls has reje cted that arg ument. See W illiams v. State , 270 S.W .3d 140, 145 (Tex. Crim. App. 2008) (conc luding that evidenc e was sufficie nt to support appellant’ s conviction when appellant destroy ed a cra ck pipe during a weap o n s i n vestig ation); see also Rodriguez v. State , No. 13-15-00287- CR, 2016 WL 3626097, at *4 (Tex. App.—Corpus Christi J une 30, 2016, no pet.) (mem. op., not desig nated for publ ication) (“The court of crimi nal appeals [i n W illiams ] held t hat th e ti tl e o f th e in

v e s ti g a ti o n a n d th e e v id e n c e a ll e g e d ly ta mp e r e d w it

h d id n o t h a

v e to ‘ ma tc h ’ in o r d e r for ther e to be a

violation of section 37.09(a) (1), so long as the tampering was committed w ith the intent to impair its availability as evidenc e in any investiga tion that the offe nder knows is pending .”).
Turner al s o arg ues that he did not “conc eal” the contra band beca

use “the deputy found those materia ls easily .” Turner further urg es that none of the objects that he alleg edly threw from the window wer e altere d or destroy ed. Howeve r, the State prese nted evidenc e that Turner
t h re w the objects from a vehicle trave ling at 30–60 miles per hour on a larg ely unlit rur al ro ad at night, that the objects landed in the ditch, and that o ff i ce rs o n l y rec overe d the objects beca use

7Officer Baker suspected that Turner had thrown something from his window and asked another

o f f ic e r to s e a r c h th e a r e a . We th e r e f

o r e c o n c lu d e th a

t th e e v id e n c e w a s s u f

f ic ie n t to s u

p p o r t th e ju r y ’ s finding that Turner conce aled the contra band. See Rodriguez , 2016 WL 3626097, at *5 (“While ‘conc eal’ is not define d by the statute, courts have held it means to hide, t o remove from sight or notice, or to k ee p fr o m d iscovery or observa tion.”); Gaitan v. State , 393 S.W .3d 400, 402 (Tex. App.—Am arillo 2012, pet. ref ’d) (“That his eff

ort was ultimately unsucce ssful matters littl e; the fac tfinder ha d befor e it some evidenc e fr om which it could leg itimately deduce that appellant wa s ‘hi ding’ what he had from the office rs called to investiga te the disturbance .”); Howell v. S t a t e , No. 05-09-00342- CR, 2010 WL 3222412, at *4 (Tex. App.—Dallas Aug

. 17, 2010, no pet.) (mem.

o p . , n o t d e s ig

n a te d f o r p u b li c a ti o n ) ( a f f ir mi n g c o n v ic ti o n f

o r ta mp e r in g w it

h e v id e n c e w

h e n d e f e n d a n t threw a box containing contra band from his vehicle and office rs discovere d the box when sear ching the ar ea)

. Be cause we have conclude d that the evidenc e was sufficie nt to sup p ort Turner ’s conviction for tampering with phy sical evide nce, w e over rule his sec ond and third points of err or.

P ossession of

a Controlled Sub stance with In tent t o Deliver
I n his fourth point of err or, Turner cont en d s t hat the evidenc e was insufficient to support his conviction for possession of a contr o l l ed substance with intent to deliver beca use the evidenc e was insufficient to l i n k him to the contra band. Howeve r, as discussed above, we have conclude d that there was sufficie nt evidenc e that Turner threw the contra band out of his window

8while being pursued. The State prese nted evidenc e that the contra band was discovere d on the top 4 of fre shly mown g rass on the side of a rura l r oad at night along the path of the pursuit a nd that one of the objects found in the ditch was a Pall Mall cig are tte packa g e simil ar to three Pall Mall cig are tte
p a c k a g e s f

o u n d in T u r n e r ’ s v e h ic le

. T h e St a

te a ls o p r e s e n te d e v id e n c e th a t T u r n e r ’ s v e h ic le c o n ta in e d

a digital scal e an d s mall bag g ies, sug g esting that he intended to distribute the drug s. There fore , viewing the evidenc e in the light most favor able to the jury ’s verdic t, we con cl u de that there was sufficie nt evidenc e to support Turner ’s conviction for possession of a controlled substance with the intent to deliver, and w e over rule his fourth point of e rror .

CONCLUSION Having o v er ru l ed Turner ’s points of err or, we aff irm the trial court’s judgme nts of convic tion.

__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Affir med Filed: June 19, 2018 Do Not Publish

On appea l, Turner does not a rg ue that he threw the objects out of his w indow but did not 4 know that they wer e contra band. He conce des, “The objects in the ditch obviously appea r to be contra band when closely examined.” Thus, Turner arg ues onl y that the evidence was insufficient to prove that he threw the objects fr om the window. 9