State of Louisiana v. Joe Angel Tovar

Judgment rendered May 21, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 56,298-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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STATE OF LOUISIANA Appellee

versus

JOE ANGEL TOVAR Appellant

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Appealed from the
Thirty-Ninth Judicial District Court for the
Parish of Red River, Louisiana
Trial Court No. 141,488

Honorable Luke D. Mitchell, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Annette Fuller Roach

JOE ANGEL TOVAR Pro Se

JULIE C. JONES Counsel for Appellee
District Attorney

BEN LANGFORD
Assistant District Attorney

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Before COX, ROBINSON, and ELLENDER, JJ.

ROBINSON, J.

Having been convicted by a unanimous jury as charged of second

degree murder, illegal use of weapons, and two counts of obstruction of

justice, Joe Angel Tovar appeals his obstruction of justice conviction related

to his handling of a digital voice recorder between interviews by

investigators from the Red River Parish Sheriff’s Office (“RRPSO”).

Concluding that the state failed to prove all the essential elements of

obstruction of justice beyond a reasonable doubt, we reverse that conviction.

Tovar’s remaining convictions and sentences are affirmed. This matter is

remanded to the trial court to correct the minutes and the Uniform

Sentencing Commitment Order.

FACTS

In the early morning hours of Monday, June 21, 2021, Tovar shot and

killed Devin Wilson in the apartment of Jessica Williams. Wilson suffered a

single gunshot to his upper abdomen. Tovar had been at the apartment,

which is located in Red River Parish, since June 19. While there, he and

Williams smoked methamphetamine and marijuana. Wilson, who was there

for Williams to press his hair, tested positive for methamphetamine in his

autopsy.

Williams stated to the police that she was in the kitchen and heard a

popping sound. She added that Tovar told her that he had shot Wilson, but

did not know why, and then he left her apartment. Later that day, Williams

identified Tovar as the shooter in a photo lineup.

Tovar was interviewed at the RRPSO station on the afternoon of June

21. Tovar gave several reasons why he killed Wilson. He told the

investigators that he was forced to kill Wilson over a disagreement that

dated back to the 1990s. Interestingly, Tovar and Wilson were born in the

1990s. Tovar also stated that he had to protect his family. Tovar indicated

that Wilson had a knife, but no weapons were found at the scene. Tovar

stated that a Smith & Wesson 9mm handgun was the weapon that he used to

shoot Wilson.

Darren Keel, a detective with the RRPSO, had placed a digital voice

recorder on the table in the interview room as a backup recording device.

When he later reviewed the video from the interview to prepare his report,

he noted that Tovar appeared to try to turn the recorder off and remove its

batteries.

The police searched Tovar’s residence on June 21 pursuant to a search

warrant. A frame for a Smith & Wesson 9mm handgun was found on a shelf

in his home, and a tote bag was found in his yard. The corner of the bag was

burned as if a projectile had been fired from inside the bag, and the interior

of the bag tested presumptively positive for gunshot residue. A spent

cartridge casing and a Smith & Wesson magazine containing 9mm bullets

were also found in the yard.

The search was stopped because of stormy weather. Officers returned

the next day to complete the search of Tovar’s residence, and with his

assistance, they found the slide and barrel for the Smith & Wesson handgun

in his yard. A 9mm projectile was removed from Wilson during his

autopsy.

The parts of the handgun found in Tovar’s home and in his yard were

reassembled at the crime lab for analysis purposes. It was determined that

the spent cartridge found in Tovar’s yard and the projectile recovered from

Wilson’s body had been fired from Tovar’s gun.
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DNA testing of the handgun frame showed that Tovar’s DNA profile

was consistent with the DNA of the major contributor found on it. DNA

testing of the magazine found DNA consistent with Tovar’s DNA profile.

On October 18, 2021, Tovar was indicted for the second degree

murder of Devin Wilson in violation of La. R.S. 14:30.1, the illegal use of

weapons in violation of La. R.S. 14:94(A), and two counts of obstruction of

justice in violation of La. R.S. 14:130.1 in that he tampered with evidence

with the specific intent of distorting the results of any criminal investigation

or proceeding which may reasonably prove relevant to a criminal

investigation or proceeding.

Keel testified at trial that he was using the voice recorder in the

investigation. He testified that Tovar was shown on the video grabbing the

recorder from the table and trying to turn it off. It also appeared that he was

trying to access the battery compartment to remove the batteries from it. At

one point, Tovar picked up the device and placed it under the table before

putting it back on the table. Tovar grabbed the device again and put it under

the table.

The jury found Tovar guilty as charged on all counts. Defense

counsel filed a motion for new trial and a motion for post verdict judgment

of acquittal. The motions were denied.

Tovar was sentenced to one year at hard labor for the illegal use of

weapons conviction. For each obstruction of justice conviction, he was

sentenced to 20 years at hard labor. He was sentenced to life imprisonment

at hard labor and without benefit of probation, parole, or suspension of

sentence for his second degree murder conviction. The sentences were to be

served concurrently.
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DISCUSSION

Tovar argues on appeal that the evidence was insufficient to prove

beyond a reasonable doubt that his touching and moving of the digital voice

recorder between interview sessions was done with the specific intent to

distort the results of any criminal investigation or proceeding or with

knowledge that such act was reasonably likely to affect a criminal

investigation. Tovar maintains that he was merely fidgeting with the

recorder as he was coming down from his methamphetamine high.

The standard of appellate review for a sufficiency of the evidence

claim is whether, after viewing the evidence in the light most favorable to

the prosecution, 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Tate, 01-1658

(La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124 S. Ct. 1604,

158 L. Ed. 2d 248 (2004). This standard, now legislatively embodied in La.

C. Cr. P. art. 821, does not provide the appellate court with a vehicle to

substitute its own appreciation of the evidence for that of the fact finder.

State v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517; State v. Dotie,

43,819 (La. App. 2 Cir. 1/14/09), 1 So. 3d 833, writ denied, 09-0310 (La.

11/6/09), 21 So. 3d 297.

The trier of fact makes credibility determinations and may, within the

bounds of rationality, accept or reject the testimony of any witness. State v.

Casey, 99-0023 (La. 1/26/00), 775 So. 2d 1022, cert. denied, 531 U.S. 840,

121 S. Ct. 104, 148 L. Ed. 2d 62 (2000). The appellate court does not assess

credibility or reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95),

661 So. 2d 442; State v. Green, 49,741 (La. App. 2 Cir. 4/15/15), 164 So. 3d
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331. A reviewing court accords great deference to a jury’s decision to

accept or reject the testimony of a witness in whole or in part. State v.

Jackson, 53,497 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1156.

The Jackson standard of review is applicable in cases involving both

direct and circumstantial evidence. An appellate court reviewing the

sufficiency of evidence in such cases must resolve any conflict in the direct

evidence by viewing that evidence in the light most favorable to the

prosecution. When the direct evidence is thus viewed, the facts established

by the direct evidence and inferred from the circumstantial evidence must be

sufficient for a rational juror to conclude beyond a reasonable doubt that

defendant was guilty of every essential element of the crime. State v. Sutton,

436 So. 2d 471 (La. 1983); State v. Hampton, 52,403 (La. App. 2 Cir.

11/14/18), 261 So. 3d 993, writ denied, 19-0287 (La. 4/29/19), 268 So. 3d

1029.

Direct evidence provides proof of the existence of a fact, for example,

a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.

2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral

facts and circumstances, from which the existence of the main fact may be

inferred according to reason and common experience. Id. When the state

relies on circumstantial evidence to establish the existence of an essential

element of a crime, the court must assume every fact that the evidence tends

to prove and the circumstantial evidence must exclude every reasonable

hypothesis of innocence. La. R.S. 15:438; State v. Lilly, supra; State v.

Green, supra.

The obstruction of justice statute, La. R.S. 14:130.1, states in relevant

part:
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A. The crime of obstruction of justice is any of the following
when committed with the knowledge that such act has,
reasonably may, or will affect an actual or potential present,
past, or future criminal proceeding as described in this Section:
(1) Tampering with evidence with the specific intent of
distorting the results of any criminal investigation or
proceeding which may reasonably prove relevant to a criminal
investigation or proceeding. Tampering with evidence shall
include the intentional alteration, movement, removal, or
addition of any object or substance either:
(a) At the location of any incident which the perpetrator knows
or has good reason to believe will be the subject of any
investigation by state, local, or United States law enforcement
officers; or
(b) At the location of storage, transfer, or place of review of any
such evidence.

Regarding the elements of the crime of obstruction of justice under

La. R.S. 14:130.1(A)(1), our supreme court has stated:

First, as in every type of obstruction case, the obstruction must
be committed “with the knowledge that such act has,
reasonably may, or will affect an actual or potential, past, or
future criminal proceeding.” . . . In this case, the knowledge
requirement is met if the perpetrator merely knows that an act
“reasonably may” affect a criminal proceeding. The statute
does not require the criminal proceeding actually be affected,
the perpetrator just must know and understand that the act
reasonably may affect the proceeding. Further, the criminal
proceeding need not already be underway, it need only be a
“potential,” “future” proceeding. . . .

The second requirement relevant to this case is that the
perpetrator tamper “with evidence with the specific intent of
distorting the results of any criminal investigation or
proceeding which may reasonably prove relevant to a criminal
investigation or proceeding.” La. R.S. 14:130.1(A)(1). Again,
the tampering does not actually have to distort the results of any
criminal investigation, the perpetrator need only have the
specific intent to distort the results. . . . Next, the evidence
tampered with must “reasonably prove relevant” to any criminal
investigation. . . .

Third, the statute provides that the tampering be either by the
intentional “alteration, movement, removal, or addition of any
object or substance.” Indeed, taken in its “usual sense,” the term
movement encompasses the action by defendant in this case, as
defendant clearly moved the marijuana from his pocket to the
ground. While defendant argues that he did nothing further in
an attempt to destroy, obliterate, or conceal the drugs, nothing
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beyond “movement” is required by the statute if accompanied
by the requisite intent and knowledge.

Finally, the tampering must be done “at the location of any
incident which the perpetrator knows or has good reason to
believe will be the subject of any investigation” by law
enforcement officers.

State v. Jones, 07-1052, pp. 9-11 (La. 6/3/08), 983 So. 2d 95, 101-102.

(Footnotes omitted.)

The state did not prove beyond a reasonable doubt that Tovar knew

that his act may affect a criminal proceeding or that he handled the recorder

with the specific intent of distorting the results of any criminal investigation

or proceeding. Although Tovar moved the recorder while he was alone,

there was no evidence that Tovar had erased or destroyed any recording. In

fact, the parts of the interview played for the jury occurred after Tovar had

handled the recorder. There was no evidence that the recorder was missing

or damaged.

The state also failed to exclude the reasonable hypothesis of

innocence that Tovar was fidgeting with the recorder because he was coming

down from his methamphetamine usage. There was testimony from the

state’s witnesses that methamphetamine is a stimulant, and someone under

its influence may fidget, be unable to sit still, or need something to do with

their hands. Tovar told the investigators that he was high on

methamphetamine. He had spent a weekend smoking methamphetamine

with Williams before the murder.

For the foregoing reasons, we reverse Tovar’s obstruction of justice

conviction related to his handling of the digital voice recorder in the

RRPSO’s interview room. His remaining convictions and sentences are

affirmed.
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Errors patent

The trial court did not advise Tovar of the prescriptive period for

seeking post-conviction relief (“PCR”), as required by La. C. Cr. P. art.

930.8(C). Therefore, we advise Tovar, by way of this opinion, that no

application for PCR shall be considered if it is filed more than two years

after the judgment of conviction and sentence has become final under La. C.

Cr. P. arts. 914 or 922. State v. Kelly, 52,731 (La. App. 2 Cir. 6/26/19), 277

So. 3d 855, writ denied, 19-01845 (La. 6/3/20), 296 So. 3d 1071.

We note that the Uniform Sentencing Commitment Order lists the

sentences for the illegal use of weapons and obstruction of justice

convictions as being imposed without benefit of parole, probation, or

suspension of sentence. This was in error as the only sentence to be served

without benefits is the sentence for the second degree murder conviction.

Accordingly, we remand this matter to the trial court to correct the Uniform

Sentencing Commitment Order.

Finally, we note that the minutes incorrectly state that for the second

degree murder conviction, Tovar was sentenced to life at hard labor without

benefit of parole or probation. We additionally remand this matter to the

trial court to correct the minutes to state that his life sentence is to be served

without benefit of parole, probation, or suspension of sentence.

CONCLUSION

Tovar’s conviction for obstruction of justice related to the digital

voice recorder is reversed. His remaining convictions and sentences are

affirmed. This matter is remanded to the trial court to correct the minutes

and the Uniform Sentencing Commitment Order.

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REVERSED IN PART, AFFIRMED IN PART, AND

REMANDED.

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