NO. 07-04-0336-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
APRIL 17, 2006
______________________________
ADOLPHUS EUGENE BARROW, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 64TH 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 tampering with
evidence and the court-assessed punishment of 45 years in the Institutional Division of the
Department of Criminal Justice. In doing so, he contends that 1) the trial court erred in
denying his motion to suppress, and 2) the evidence was legally and factually insufficient
to support the conviction. We disagree and affirm the judgment of the trial court.
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon 2005).
Background
On August 17, 2003, Trooper Guadalupe Deluna observed a vehicle traveling toward
him at a speed of 52 m.p.h. in a 45 m.p.h. zone. He 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 vehicle while he ran a criminal
history check. Sammy had several outstanding warrants which caused Deluna to place him
under arrest. He also determined that both passengers had felony convictions so Deluna
requested backup.
Deluna could not release the vehicle to the passengers 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 exiting the vehicle, appellant was observed with his hand in his pocket.
Deluna asked appellant to remove his hand, which appellant did, but he then returned his
hand to the pocket. The same thing happened two other times with the officer asking
appellant to remove his hand from his pocket and appellant doing so initially but then
returning his hand to his pocket. The third time appellant took his hand out of his pocket,
he did so in a fist, which caused Deluna to believe that appellant was holding something.
Deluna decided to perform a pat-down search for his safety. He ordered appellant to put
his hand on the car and grabbed it to position it, at which time appellant moved something
from his left hand to his right hand and then put his right hand to his mouth. The officer
pried open appellant’s mouth and observed a small off-white colored rock which he believe
to be either cocaine or methamphetamine. Deluna ordered appellant to spit out the rock,
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but appellant swallowed it instead, after which appellant was arrested for tampering with
evidence. Appellant was later taken to the hospital as a precaution for any ill effects he
might have suffered from ingesting the substance, but he refused treatment.
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 because the search was
illegal. We overrule the issue.
We review the trial court’s ruling on a motion to suppress under 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 historical fact and review de novo its
application of the law to the facts. Id. at 89.
Appellant does not contest the initial detention of the vehicle and its occupants.
Once a person is detained, a pat-down search is permissible when the police officer
reasonably suspects he is dealing with an armed and dangerous individual. Davis v. State,
61 S.W.3d 94, 97 (Tex. App.--Amarillo 2001, no pet.); Maldonado v. State, 853 S.W.2d
746, 748 (Tex. App.--Houston [1st Dist.] 1993, no pet.) (citing Terry v. Ohio, 392 U.S. 1, 27,
88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)). The officer neither has to be absolutely
certain that the individual is armed nor have probable cause to arrest. Davis v. State, 61
S.W.3d at 97. The issue is whether a reasonably prudent person in the same
circumstances would be warranted in believing that his safety or that of others is in danger.
Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000) (the officer must have
specific and articulable facts reasonably leading him to conclude that the suspect might
possess a weapon).
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A pat-down was found to be justified in Strickland v. State, 923 S.W.2d 617, 620
(Tex. App.--Houston [1st Dist.] 1995, no pet.) when the suspect repeatedly attempted to
place his hands in his pockets despite being ordered to move them, there was a bulge in
his pocket, and he appeared nervous. The facts known by the officer here were that
appellant and the other two persons in the vehicle were known felons, with one of them
having outstanding warrants, appellant acted nervous, 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 hands in his pockets after being
ordered by the officer to remove them. Thus, the officer did not rely solely on the fact that
appellant appeared nervous, as appellant suggests. We find the facts similar to those in
Strickland and that Deluna was reasonably warranted 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 steady his left hand on the trunk of the car. The officer believed the object
to be drugs or a weapon. Then appellant 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 officer had probable cause to seize appellant and attempt to prevent destruction
of the contraband. Sanders v. State, 855 S.W.2d 151, 152 (Tex. App.--Houston [14th Dist.]
1993, no pet.). We find no error in the trial court’s denial of the motion to suppress.
Issue 2 - Sufficiency of the Evidence
In his second issue, appellant challenges the legal and factual sufficiency of the
evidence to sustain his conviction. A person commits the offense of tampering with
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physical evidence 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 evidence in
the investigation. 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 progress.
The standards by which we review challenges to the sufficiency of the evidence are
well established. In reviewing the legal sufficiency of the evidence, we must determine,
after reviewing the evidence in the light most favorable to the verdict, whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In
reviewing the factual sufficiency, the reviewing court examines all the evidence without the
prism of “the light most favorable to the prosecution” to determine whether the evidence
is so weak as to undermine confidence in the jury’s determination or the adverse finding
is against the great weight and preponderance of the evidence. Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). Under both standards, the factfinder may reasonably
infer facts from the evidence before it, credit the witnesses it cares to, disbelieve any or all
of the testimony proffered, and weigh the evidence in the manner it chooses. Depauw v.
State, 658 S.W.2d 628, 633-34 (Tex. App.--Amarillo 1983, pet. ref’d).
Appellant was indicted for concealing a controlled substance knowing “that an
investigation was in progress” as opposed to merely pending.2 An investigation for
narcotics has been held not to be in progress when the officer approached a vehicle after
2
In Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.--Houston [1st Dist.] 2004, pet.
ref’d), the court stated that “pending” means “impending, or about to take place.”
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a traffic stop and observed the driver ingesting a white substance. See Lumpkin v. State,
129 S.W.3d 659, 663 (Tex. App.--Houston [1st 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 mouth. The officer already believed that appellant
had either a weapon or narcotics in his hand. At the time he pried open appellant’s mouth,
he observed what he believed to be either methamphetamine or cocaine. The officer then
ordered appellant to spit out the substance, but instead appellant swallowed it. We
believed the jury could rationally infer beyond a reasonable doubt that appellant knew he
was being investigated for drug possession at the time 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 the judgment of the trial court.
John T. Boyd
Senior Justice
Do not publish.
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