David v. State

SHOLOMO DAVID, Appellant v. THE STATE OF TEXAS

No. PD-0307-21

Court of Criminal Appeals of Texas

May 11, 2022

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS EL PASO COUNTY

Hervey, J., delivered the opinion of the Court in which Richardson, Newell, Keel, Walker, and Slaughter, JJ., joined. Keller, P.J., and Yeary and McClure, JJ., concurred.

OPINION

HERVEY, J.

Sholomo David, Appellant, was indicted for felony tampering with physical evidence, a third-degree felony. The State's theories were that Appellant "altered," "concealed," or "destroyed" marijuana when he dumped it into a toilet containing water and human waste during a police raid of the motel room he was in.^[1] The jury convicted Appellant and sentenced him to 30 years' confinement as a habitual offender. Appellant appealed and argued among other things that the evidence is legally insufficient to show that he put the marijuana in the toilet and to prove that putting the marijuana into the toilet with water and human waste altered, concealed, or destroyed it. The court of appeals found the evidence legally insufficient and rendered an acquittal. We granted review to decide whether the evidence is sufficient to show that Appellant altered or destroyed the marijuana. Because we conclude that the evidence is legally sufficient to show that Appellant altered the marijuana, we will reverse the judgment of the court of appeals and remand the cause for it to address Appellant's remaining issues.

FACTS

a. Background

In June 2016, Special Agent Gabriel Nava, a member of the gang/organized crime unit of the Criminal Investigations Division of the Texas Department of Public Safety, was coordinating surveillance at the Studio and Rooms motel complex in El Paso because he believed that drugs were being sold there. The motel was associated with drug dealing, mostly crack cocaine and methamphetamine, as well as human trafficking by gang members. There had also been multiple assaults related to the illegal activities and a stabbing not long before this incident.

b. The Day Before the Raid

The day before the raid, June 8, 2016, a criminal informant told police that drugs were being sold in Room 15, so police set up a controlled buy. The undercover officer went to Room 12, and a female answered the door. The female then went to Room 15, obtained crack cocaine, returned to Room 12, and sold the drugs to the officer. Police obtained search warrants for both rooms with plans to execute the search warrants the following day.

c. The Day of the Raid

The following day, June 9, 2016, police surveilled the motel before executing the search warrants, and they saw that the drug activity had shifted to Room 18. Lt. Nava (then Special Agent Nava), who oversaw the operation, testified that he saw many brief, hand-to-hand transactions, which in his experience, "tend to be quick street level deals that are happening for narcotics." In particular, he saw a female leave Room 18 numerous times on foot to conduct hand-to-hand transactions with other people who approached on foot. Another agent saw a male leave Room 18, walk across the street (where the agent was parked), produce a glass pipe, and begin smoking a "white rock-like substance." Because the drug activity had moved to Room 18, Lt. Nava decided that the agents needed to regroup. They assigned a team of officers to execute the search warrant at Room 15 and for a team of officers to do a "knock and talk" at Room 18.^[2] Police did not execute the search warrant for Room 12 at that time because they had insufficient personnel. Police then arrived in force, some in a marked car wearing gear identifying themselves as state police. As they were arriving, a woman approaching Room 18 saw them. She went to the open doorway of Room 18 and yelled something to the occupants, but Lt. Nava could not hear what she said. The woman then stepped away from the door and sat on the curb. As police approached the motel rooms announcing their presence and ordering the occupants to show themselves, someone inside Room 18 slammed that door shut. When Lt. Nava reached the door, he smelled the strong odor of marijuana and could hear "a bunch of movements." According to him, it was "obviously more than one person -- quick movement." He told other agents behind him to keep knocking and try to contact the occupants while he proceeded to Room 15, his assignment, to execute the no-knock search warrant.

While Lt. Nava was executing the warrant, Special Agent Michael Carrasco had continued directly to Room 18 and started knocking on the window. Other officers were already knocking on the door. Agent Carrasco could not see anything through the window but heard the voices of multiple people and a lot of commotion inside the room, "[l]ike shuffling of whatever they had inside -- their clothes or other things. You could hear like a drawer trying to close."

Lt. Nava and Agent Carrasco breached Room 18 together. According to Lt. Nava, the room was a mess, with clothing everywhere, "like they had been staying an extended amount of time." "The room had a very, very strong odor of marijuana," and in plain view there were "cigarette-type Swisher Sweets or Phillies or other types of things like that, they tend to roll marijuana in . . . ." Agent Carrasco said that the odor of marijuana "hit [him] like a rock." There was paraphernalia all over the room, including a glass pipe commonly used to smoke either crack cocaine or methamphetamine. In a drawer were found a realistic-looking pistol BB gun and four cell phones. According to Lt. Nava, it is typical for narcotics dealers to have multiple cell phones.

There were two females in the immediate living area, and Lt. Nava and Agent Carrasco heard someone in the bathroom. Agent Carrasco said that he was knocking on the door and announcing himself as a police officer while ordering Appellant out, but Appellant did not answer. Instead, Agent Carrasco started hearing "shuffling of stuff --feet shuffling and movement." At that point, Agent Carrasco tried to enter, but the door was locked, so the team breached the door and found Appellant alone, completely clothed, and standing in a one-to-two-foot space between the toilet and shower. Appellant never said anything to police.

In searching the bathroom, Lt. Nava found a loose green leafy substance in the toilet. It had been mixed with water and excrement. He also saw some smaller glass pipes at the bottom of the toilet. Lt. Nava believed that narcotics had been flushed prior to them breaching the door and that they found only the remnants of what did not flush. A photograph of the substance introduced by the State appears to show that some of the substance is still burning. Lt. Nava said that they did not collect the loose marijuana because it was only a usable amount that was mixed with water and human waste.^[3] Lt. Nava agreed with defense counsel that, had they collected the marijuana, it might have been able to be tested. Agents arrested all the occupants for tampering with physical evidence.

PROCEDURAL HISTORY

The State indicted Appellant for tampering with physical evidence, a third-degree felony. Tex. Penal Code § 37.09(a)(1). A jury found Appellant guilty. At punishment, the State alleged and Appellant stipulated that he had previously been convicted of 11 prior felonies.^[4] Appellant was subject to between 25 years to life confinement as a habitual offender. Id. § 12.42(d). The jury sentenced him to 30 years' confinement. He filed two motions for new trial, ^[5] and the trial court held three evidentiary hearings. The motions were eventually overruled by operation of law.

On appeal, Appellant raised four points of error, including that the evidence is legally insufficient. David v. State, 621 S.W.3d 920, 922 (Tex. App.-El Paso 2021). A split panel of the El Paso Court of Appeals agreed and further held that Appellant's conviction could not be reformed to reflect that he was convicted of the lesser-included offense of attempted tampering with physical evidence. Id. at 928, n.1. The court of appeals did not reach Appellant's challenge to the sufficiency of other elements of the offense or his other points of error. Id. The State then filed a petition for discretionary review, which we granted, arguing that the court of appeals erred because the evidence is legally sufficient to show that Appellant altered or destroyed the marijuana and that, even if the evidence is insufficient, the court of appeals erred in holding that Appellant's conviction could not be reformed.

LEGAL SUFFICIENCY

a. Law

A criminal conviction cannot stand unless it is supported by legally sufficient evidence. Jackson v. Virginia 443 U.S. 307, 318 (1979). Evidence supporting a conviction is legally sufficient if a rational trier of fact could have found each element of the offense beyond a reasonable doubt. Id. (citing In re Winship, 397 US. 358, 364 (1970)) The trier of fact is the exclusive judge of the credibility and weight of the evidence and is allowed to draw any reasonable inference from the evidence so long as it is supported by the record. Id. at 319. When reviewing the evidence, we consider the combined and cumulative force of all the admitted evidence in the light most favorable to the verdict. Id.; Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction. Jackson, 443 U.S. at 324-25; Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013). The evidence need not negate every conceivable alternative to a defendant's guilt to be sufficient, Geesa v. State, 820 S.W.2d 154, 160-61 (Tex. Crim....