Comment

There are four major ways of committing the offense of tampering with physical evidence under Tex. Penal Code § 37.09. They include (1) altering, destroying, or concealing a record, document, or thing when one knows an investigation or official proceeding is pending (Tex. Penal Code § 37.09(a)(1)); (2) making, presenting, or using a false record, document, or thing with the intent to affect the outcome of an investigation or official proceeding when one knows an investigation or official proceeding is pending (Tex. Penal Code § 37.09(a)(2)); (3) altering, destroying, or concealing a record, document, or thing with intent to impair its verity, legibility, or availability in any subsequent investigation or official proceeding when one knows that an offense has been committed (Tex. Penal Code § 37.09(d)(1)); and (4) failing to report a human corpse observed under circumstances in which a reasonable person would believe an offense has been committed and knows or reasonably should have known a law enforcement agency is not aware of the existence or location of the corpse (Tex. Penal Code § 37.09(d)(2)).

An offense under section (a) or (d)(1) is a third-degree felony unless the thing altered, destroyed, or concealed is a human corpse. In that event, the offense is a felony of the second degree. The offense under section 37.09(d)(2) is a class A misdemeanor.

Texas Penal Code Section 37.09(c–1) Defense.  The defense provided for in Tex. Penal Code § 37.09(c–1) is puzzling. It provides for a defense if the thing involved was “visual material prohibited under Tex. Penal Code § 43.261 that was destroyed as described by Subsection (f)(3)(B) of that section.” Section 43.261(f)(3) does not have a (B); it is not subdivided. Section 43.261 prohibits promotion or possession of certain material by a minor. Subsection (f) creates a defense containing three “elements,” one of which is 43.261(f)(3). Subsection c–1 was added to section 37.09 by the 2011 legislation that created section 43.261. The intent appears to have been to permit a minor to destroy material in a manner eliminating liability under section 43.261 without thereby incurring liability under section 37.09. Common sense suggests the subsection c–1 defense in section 37.09 should incorporate all three elements of the section 43.261(f) defense, but by referring only to section 43.261(f)(3)(B) it does not do that.

Given the limited circumstances in which the defense could apply and the difficulty of accurately reflecting the statutory meaning, the Committee decided not to offer an instruction on the defense.

Culpable Mental States. Texas Penal Code section 37.09(a)(1) requires that the defendant, knowing that an investigation or official proceeding is pending or in progress, take the action described in the statute to impair a record, document, or thing with the specific intent to impair its evidentiary value either in the investigation or before an official proceeding. Tex. Penal Code § 37.09(a)(1).

Adequate explanation of the required culpable mental states is particularly important, as the court of criminal appeals has distinguished between intent and knowledge in applying this offense. In Stewart v. State, 240 S.W.3d 872, 874 (Tex. Crim. App. 2007), the defendant, a police officer, returned to the arrested person (Lavender) one of several marijuana buds seized from her, after she and the officers agreed to pursue the possibility of her acting as an informant in lieu of prosecution. Reversing the conviction (although by a close 5-to-4 vote), the court explained:

Stewart, 240 S.W.3d at 874. The court of criminal appeals disapproved of the intermediate court’s reliance on evidence that persuaded it that Stewart knew his actions would impair the availability of the bud as evidence. The court emphasized that the state must prove intent, not simply knowledge.

Knowledge that Investigation or Proceeding Is “Pending.” The first two ways of committing the offense require proof that the defendant knew an investigation or official proceeding was either “in progress” or “pending.” If the state relies on proof that the investigation or proceeding was “pending,” must or may the instructions define “pending”? No case law has addressed the question.

Dicta in Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d), indicated that pending means “impending or about to take place.” This definition has been accepted in other cases which, like Lumpkin, involved challenges to the sufficiency of the evidence. See Thurston v. State, No. 02-13-00242-CR, 2014 WL 3536955 (Tex. App.—Fort Worth July 17, 2014) (per curiam) (not designated for publication), pet. dismissed as improvidently granted, 465 S.W.3d 255 (Tex. Crim. App. 2015) (per curiam). In Thurston, the state’s evidence was that Thurston shot and killed the victim and then, two days later, moved the body to a nearby location close to some railroad tracks. He was aware that no one had seen him kill the victim and only his girlfriend knew he had done so. No investigation was in progress, of course, and Thurston argued none was pending and thus he could not know one was pending. It would seem the jury’s attention might have focused on whether the investigation into either the victim’s location or death, which was almost certain to occur, was likely to occur soon enough to render that investigation “pending” within the meaning of the statute. Assuming the correctness of the Lumpkin standard, the issue might be whether the investigation was “about to take place.”

On the facts of Thurston, an instruction using only the statutory words requiring the jury to determine whether the state proved the investigation was pending and that Thurston knew this would seem to provide the jury with insufficient guidance. Adding the Lumpkin explanation that “pending” means impending or about to take place would not provide much additional guidance. It might make clear that some imminence is required, although providing no useful way for a jury to decide how imminent the defendant must have believed the investigation to be.

The Committee concluded that “pending” cannot under existing law be defined in the instruction.

Work Product or Privilege Exception. Tex. Penal Code § 37.09(b) provides that section (a) is not applicable “if the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.” It is applicable only if the state alleges concealment. Thus it does not apply if the state alleges alteration or destruction. See Cuadra v. State, 715 S.W.2d 723, 724 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d) (“[W]hether a document is privileged is relevant only when that document has been concealed.”).

The Committee concluded that the provision is unlikely to be frequently applicable and its content is quite unclear. Consequently, the Committee did not attempt to draft an instruction covering it.

Application to Certain Traffic Stop Situations. The Committee had some concern whether an instruction in the statutory terms would lead juries to the correct results in cases in which a person stopped for a traffic matter acts to alter, destroy, or conceal drugs or weapons. This concern is based on the analysis in Williams v. State, 270 S.W.3d 140 (Tex. Crim. App. 2008).

In Williams, an officer approached the car in which Williams was sitting and began to frisk him. A crack pipe dropped to the ground but did not break; Williams stomped on it, breaking it. His indictment alleged that “knowing that an investigation was in progress, to-wit: checking [Appellant] for weapons, [Appellant] intentionally and knowingly destroy[ed] drug paraphernalia, to-wit: a crack pipe, with intent to impair its verity and availability as evidence in the investigation.” Williams, 270 S.W.3d at 143. It did not allege he intended to impair the pipe’s availability in a pending investigation into possession of crack.

Upholding the conviction, the court of criminal appeals appears to reject the court of appeals’s analysis that a drug investigation began when the officer noticed the pipe and Williams both knew of that and intended to render the pipe unavailable in that investigation. Rather, it explained:

Williams, 270 S.W.3d at 145.

Williams seems to reason that if an officer is investigating a traffic or similar matter and the suspect anticipates the officer will begin a drug investigation if he finds evidence of drugs, a suspect who destroys drugs before the officer becomes aware of those drugs has the intent to render the drugs unavailable in the traffic investigation. The analysis appears to reject Pannell v. State, 7 S.W.3d 222 (Tex. App.—Dallas 1999, pet. ref’d) (reversing conviction for throwing marijuana joint out of window during traffic stop because there was no investigation in progress or pending in which the substance could have been evidence). In Pannell, there was apparently no evidence that the officer had any suspicions concerning marijuana at the time Pannell discarded the joint.

The result in Williams could easily be explained on the theory that the jury could find that once the pipe fell, Williams realized (“knew”) a drug investigation was at least “pending” (since the officer saw it too) and acted with intent to render the pipe unavailable in that investigation. But the state pleaded a weapons investigation in progress.

Definition of “Destroy.” There is no statutory definition of the word destroy. The sufficiency of evidence to prove destruction was addressed in Williams, 270 S.W.3d 140.

In Williams, the defendant claimed the crack pipe had not been destroyed within the meaning of the statute because the state recovered and was able to use the pieces of it. The court responded:

Williams, 270 S.W.3d at 146. This explanation suggests the word destroy might be defined as including any change to an item that causes the item to lose its identity as an item of the sort it originally was or to no longer be recognizable as such an item.

The Committee concluded, however, that any such definition would be one jurors would apply as a matter of common usage and meaning and thus no definition in the instructions would be appropriate.

Definition of “Falsity.” The manner of committing the offense provided for in Tex. Penal Code § 37.09(a)(2) requires proof of the falsity of the record, document, or thing and that the defendant knew of this falsity. Falsity is not defined by statute but appears to include situations in which a record or document contains false information or assertions.

Some members of the Committee were concerned that the meaning of falsity might not be sufficiently clear without an instructional definition. The Committee, however, concluded that in light of the lack of any statutory definition or clear case law requirement, no definition should be included.