Emilio Ramirez-Torres v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 12, 2024
• Docket: 03-23-00138-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00138-CR

Emilio Ramirez-Torres, Appellant

v.

The State of Texas, Appellee

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2016-842, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING

ME MO RAN DU M O PI N I O N

Emilio Ramirez-Torres appeals his tampering with physical evidence conviction on

sufficiency grounds. We will affirm.

BACKGROUND

Responding to a report of marijuana use under the Faust Street Bridge in New

Braunfels, Officer Stephen Dowell went to investigate. As he neared the river, he smelled fresh

marijuana. Dowell saw Ramirez-Torres sitting on a rock with his back to him. Ramirez-Torres

had his phone in his hand and Dowell saw “a green leafy substance” that “smelled like marijuana”

on its screen. Dowell asked him what he was doing, and Ramirez-Torres said he was “rolling a

joint.” When Ramirez-Torres turned his head and saw that the voice asking the question belonged

to a police officer, he “threw what was on the screen into the nearby river—in the direction of the

nearby river.” Dowell could tell that Ramirez-Torres had been drinking beer. He could smell it, and Ramirez-Torres was sitting next to a cooler with empty containers. Dowell arrested him for

public intoxication “due to being in a public place. He was alone and not with anybody else at the

time, and he had been drinking alcohol.” Ramirez-Torres “was near the river and proved to be an

endangerment [to] himself depending on the quantity of alcohol that he had consumed.” And “he

had tampered with evidence, making it a felony to make that inaccessible for me.” Officer Tye

Jackson searched Ramirez-Torres and found a pack of cigarettes on him that “smelled very

strongly” of unburnt marijuana, but found no marijuana.

Dowell looked in the vicinity but did not find any “small bits of green marijuana

mixed in with the grass and the rocks and everything nearby.”

Ramirez-Torres was indicted on a single count of tampering with physical evidence

in two paragraphs. The first alleged Ramirez-Torres, knowing that an investigation was pending

or in progress, altered, destroyed, or concealed marijuana with intent to impair its verity, legibility,

or availability as evidence in the investigation. The second alleged Ramirez-Torres, knowing that

an offense had been committed, altered, destroyed, or concealed marijuana with intent to impair

its verity, legibility, or availability as evidence in any subsequent investigation of or official

proceeding related to that offense.

At a jury trial, Dowell and Jackson testified about the incident as described above.

Ramirez-Torres cross-examined Dowell on the fact that in his report, Dowell 1) wrote that

Ramirez-Torres threw the marijuana towards the river rather than in the river, and 2) did not

document that Dowell tried to locate what he had seen thrown. Ramirez-Torres also asked Dowell

whether he could have charged Ramirez-Torres with misdemeanor possession of marijuana instead

of felony tampering, and Dowell testified that he could not have; he could not prove “one way or

the other” that the substance was marijuana after Dowell “made it unavailable” to him. The jury

2 found Ramirez-Torres guilty as charged, assessed punishment at four and a half years’

confinement, and recommended the trial court put him on community supervision. The trial court

assessed the sentence as recommended, suspended the sentence, and placed Ramirez-Torres on

community supervision for seven years. In a single issue, Ramirez-Torres contends the evidence

is insufficient to support the conviction because the evidence showed he either moved the

marijuana into plain sight or never possessed it in the first place.

APPLICABLE LAW AND STANDARD OF REVIEW

We review a challenge to the sufficiency of the evidence under the standard set

forth in Jackson v. Virginia, 443 U.S. 307 (1979). See Matlock v. State, 392 S.W.3d 662, 667 (Tex.

Crim. App. 2013). Under that standard, we examine all the evidence in the light most favorable to

the verdict and resolve all reasonable inferences from the evidence in the verdict’s favor to

determine whether any rational trier of fact could have found the essential elements of the charged

offense beyond a reasonable doubt. Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015).

“[N]o evidence is ignored because the standard requires a reviewing court to view all of the

evidence in the light most favorable to the verdict.” Cary v. State, 507 S.W.3d 750, 759 n.8 (Tex.

Crim. App. 2016) (internal quotation marks and emphasis omitted). “An appellate court cannot

act as a thirteenth juror and make its own assessment of the evidence.” Nisbett v. State, 552 S.W.3d

244, 262 (Tex. Crim. App. 2018). Rather, “[a] court’s role on appeal is restricted to guarding

against the rare occurrence when the factfinder does not act rationally.” Id. This rationality

requirement is a key and explicit component of the Jackson sufficiency standard. See Jackson,

443 U.S. at 319.

3 APPLICATION

Under the tampering-with-physical-evidence statute, and the charges here, the jury

could convict Ramirez-Torres of either a section 37.09(a)(1) or 37.09(d)(1) offense. See Tex. Penal

Code § 37.09(a)(1) (“(a) A person commits an offense if, knowing that an investigation or official

proceeding is pending or in progress, he: (1) alters, destroys, or conceals any record, document, or

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

official proceeding[.]”);§ 37.09(d)(1) (“(d) A person commits an offense if the person: (1) knowing

that an offense has been committed, alters, destroys, or conceals any record, document, or thing

with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation

of or official proceeding related to the offense[.]”). The indictment named the thing altered,

destroyed, or concealed—with the requisite knowledge and intent—as marijuana. Although the

State was not necessarily required to allege the specific identity of the tampered with “thing” in

the indictment as marijuana, see State v. Zuniga, 512 S.W.3d 902, 906-09 (Tex. Crim. App. 2017),

it did. The hypothetically correct jury charge therefore requires (as the actual jury charge did here),

proof that the tampered-with thing was marijuana. See David v. State, 663 S.W.3d 673, 679 (Tex.

Crim. App. 2022).

1. Possession of Marijuana

Ramirez-Torres argues that because the officers never found marijuana, he never

possessed it. But a jury is entitled to rely on an officer’s lay opinion that he smelled or saw

marijuana as evidence of possession. Osbourn v. State, 92 S.W.3d 531, 538-39 (Tex. Crim. App.

2002); Tex. R. Evid. 701 (lay opinion testimony must be “(a) rationally based on the witness’s

perception; and (b) helpful to clearly understanding the witness’s testimony or to determining a

4 fact in issue”). “Unlike other drugs that may require chemical analysis, mari[j]uana has a distinct

appearance and odor that are familiar and easily recognizable[.]” Osbourn, 92 S.W.3d at 538.

Dowell’s opinion that Ramirez-Torres possessed marijuana, based on the odor he smelled and

the green, leafy substance he saw, was one that a reasonable person could draw from the

circumstances. Id. And that testimony was helpful to the determination of a fact in issue—whether

Ramirez-Torres had possession of marijuana. Id.

Ramirez-Torres argues that Dowell’s opinion testimony (even combined with

Jackson’s opinion testimony that his pack of cigarettes smelled very strongly of unburnt marijuana

and his own statement that he was rolling a joint), is inadequate to prove possession because

Dowell and Jackson failed to find the evidence and verify that it was marijuana. In David,

663 S.W.3d 673, the Court of Criminal Appeals rejected a similar argument.

There, agents testified that the defendant flushed narcotics before they breached

the door of the bathroom, and they found only the remnants of what did not flush mixed with

excrement. Id. at 677. The Court found that the agents’ testimony that the “loose green leafy

substance in the toilet” was marijuana was sufficient to establish that the substance was marijuana.

Id. at 677, 681. “Just because the agents could have collected the marijuana, dried it, and tested

it, does not mean that the agents had to collect the marijuana, nor does it mean that the evidence is

somehow ‘less sufficient’ because they did not.” Id.

Dowell’s lay opinion as to the identity of the substance he smelled and saw was

rationally based on his firsthand sensory experience, probative to possession, and consistent with

Jackson’s testimony that his pack of cigarettes smelled like marijuana, and Ramirez-Torres’

statement that he was “rolling a joint.” And although Dowell, on cross-examination, stated that he

could not “legally prove” the substance was marijuana because Ramirez-Torres “threw it in the

5 river,” the jury is the exclusive judge of the facts and is bound to receive the law applicable to the

case from the trial court. Tex. Code Crim. Proc. arts. 36.13, 36.14. Under Osbourn and David,

Dowell’s testimony was sufficient to support the jury’s threshold finding that Ramirez-Torres

possessed marijuana. See Osbourn, 92 S.W.3d at 538; David, 663 S.W.3d at 681.

2. Concealment of Marijuana

Ramirez-Torres argues that his moving of evidence did not alter or conceal it, and

that this case is controlled by Stahmann v. State, 602 S.W.3d 573 (Tex. Crim. App. 2020). There,

the Court of Criminal Appeals held that evidence that the defendant threw a pill bottle over a wire

fence was not sufficient to support a tampering conviction where witnesses never lost sight of the

pill bottle, witnesses directed an officer to the bottle, the officer could see it “very clearly,” and the

officer easily retrieved it. Id. at 576, 580-81.

In so doing, the Court explained that to conceal a physical thing is to hide it, remove

it from sight or notice, or keep it from discovery or observation. Id. at 581. It held that a rational

jury could have reasonably inferred that Stahmann intended to conceal the pill bottle when he

threw it over the fence, but it could not find actual concealment because the evidence showed that

“the bottle landed short of the bush in plain view on top of some grass.” Id. Since Stahmann, the

Court has emphasized that its holding was a narrow one.

In McPherson v. State, 677 S.W.3d 663 (Tex. Crim. App. 2023), the Court held that

evidence a defendant threw marijuana cigarillos out of his moving vehicle was sufficient to support

his tampering-by-concealment conviction even though the officer knew where the “brown objects”

landed and, after backtracking, retrieved them from plain view on the side of the highway. Id. at

664-67. Unlike in Stahmann, the evidence was not in “continuous sight” and was not immediately

6 discovered. Id. at 666-67. And in Ransier v. State, 670 S.W.3d 646 (Tex. Crim. App. 2023), the

Court held that the defendant was not entitled to a lesser-included offense instruction on attempted

tampering where the officer testified that the defendant momentarily concealed a syringe from him

by holding it in his fist and shoving it underneath the driver’s side seat. Id. at 648, 650-51.

The through line on these cases is that to prove tampering by concealment, the thing

concealed must in fact be hidden, removed from sight or notice, or kept from discovery or

observation—even if just temporarily.

Here, the State offered evidence that, owing to Ramirez-Torres’s action, the

marijuana was permanently hidden, removed from sight, or kept from discovery. Ramirez-Torres

notes that the Texas tampering-with-evidence statute does not include a “moves” theory of liability,

and asserts that the evidence shows only movement, a brushing of the substance onto the ground,

where it remained in plain sight, like the pill bottle in Stahmann. But that is not what the evidence,

looked at in the light most favorable to the verdict, shows. Dowell testified that when he walked

up and Ramirez-Torres turned and saw him in his patrol uniform, Ramirez-Torres tossed the loose

marijuana on his phone screen “into the nearby river -- in the direction of the nearby river” and

Dowell was unable to collect it. Dowell testified that he attempted to recover the marijuana by

looking around the vicinity for “the small bits of green marijuana mixed in with the grass and the

rocks and everything nearby,” but was unsuccessful.

Ramirez-Torres points out that Dowell’s search was short, that there is no evidence

that Dowell searched using his sense of smell and that the “record is silent as to difficulties” Dowell

might have had while searching for the marijuana. But the difficulties are inherent to the

circumstances: Dowell’s testimony, when examined in the light most favorable to the verdict,

supports a reasonable inference that Ramirez-Torres tampered with the evidence by dispersing it

7 into an environment that either camouflaged it (rocks and grass) or absorbed it (river). Jackson,

443 U.S. at 319. And, as a matter of common sense, searching for “small bits of green marijuana”

among rocks and grass is more difficult than searching for a pill bottle, cigarillo, or syringe in the

same environment. The marijuana was not moved into plain view, quite the opposite. Finally,

Ramirez-Torres asserts that the search should have been for the “grassy substances” Dowell saw,

instead of just for marijuana. But we have already held that Dowell’s opinion that what he saw

and smelled was fresh marijuana was sufficient to prove it was fresh marijuana. Here, the jury had

before it testimony from which it could conclude that Ramirez-Torres did not just move the

marijuana; he concealed it. See Stahmann, 602 S.W.3d at 581; McPherson, 677 S.W.3d at 664-65;

Ransier, 670 S.W.3d at 648.

CONCLUSION

The combined and cumulative force of all the admitted evidence, viewed in the

light most favorable to the verdict, supports the jury’s threshold finding that Ramirez-Torres

possessed marijuana, and its ultimate finding that he concealed it. See Jackson, 443 U.S. at 319.

Ramirez-Torres does not challenge the sufficiency of the evidence to prove the remaining elements

of tampering with evidence, so we affirm the judgment of the trial court. Tex. R. App. Proc. 47.1.

__________________________________________ Chari L. Kelly, Justice

Before Chief Justice Byrne, and Justices Kelly and Theofanis

Affirmed

Filed: December 12, 2024

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