Opinion
No. 13-04-302-CR
Memorandum Opinion Delivered and Filed July 7, 2005. DO NOT PUBLISH. Tex.R.App.P.47.2(b).
On appeal from the 148th District Court of Nueces County, Texas.
Before Justices YAÑEZ, CASTILLO, and GARZA.
MEMORANDUM OPINION
Appellant was convicted of tampering with physical evidence and now appeals, arguing that the evidence was factually insufficient to prove that the evidence he allegedly tampered with was actually crack cocaine. See TEX. PENAL CODE ANN. § 37.09(a) (Vernon 2003) (evidence tampering); Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004) (setting forth the standard of review for factual-sufficiency challenges). Viewed in a neutral light, the evidence shows that upon being confronted by two police officers, appellant put something in his mouth. While attempting to prevent appellant from swallowing the object, the officers observed several pieces of suspected crack cocaine in appellant's mouth. Appellant shoved the officers away from him and was able to ingest most of the substance. The officers later observed little pieces and residue of the substance covering appellant's tongue, but they were unable to recover a sample because of appellant's unwillingness to cooperate. It is of no consequence that, at trial, the State could not prove that the substance was crack cocaine. Appellant was charged with and convicted of tampering with evidence, not possession of crack cocaine. The State's evidence was factually sufficient to prove the indictment's allegation that appellant knew a possible drug investigation was pending and intentionally or knowingly destroyed a suspected narcotic. See Vaughn v. State, 33 S.W.3d 901, 904 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (concluding that similar evidence was factually sufficient to prove evidence tampering even though the destroyed evidence was only suspected to be crack cocaine). Appellant's sole issue is overruled and the judgment of the trial court is affirmed.