Zuniga, Mary ( 2015 )

PD-1317-15
PD-1317-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/8/2015 5:20:42 PM
Accepted 10/9/2015 2:47:13 PM
CAUSE NUMBER ________________ ABEL ACOSTA
CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
__________________________________________________________________
MARY ZUNIGA
Petitioner
V.
THE STATE OF TEXAS
Respondent
__________________________________________________________________
From the Thirteenth District Court of Appeals, Cause No. 13-14-0316-CR and
the 347th District Court for Nueces County,
Cause No. 13-CR-4404-H, Honorable Missy Medary
________________________________ ________________________________
PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________
CHRISTOPHER J. GALE
Texas Bar No. 00793766
GALE LAW GROUP, PLLC
P.O. Box 2591
Corpus Christi, Texas 78403
Telephone: (361) 808-4444
Telecopier: (361) 232-4139
Email: Chris@GaleLawGroup.com
Attorney for Petitioner
ORAL ARGUMENT REQUESTED
October 9, 2015
IDENTITY OF INTERESTED PARTIES
Pursuant to Texas Rule of Appellate Procedure 68.4(a), Petitioner lists the
following persons who have an interest in the appeal:
PETITONER: Mary Zuniga
PETITIONER’S TRIAL COUNSEL Christopher J. Gale
PETITIONER’S APPELLATE COUNSEL Christopher J. Gale
RESPONDENT The State of Texas
RESPONDANT’S TRIAL COUNSEL David Jakubowski
Assistant District Attorney
901 Leopard St. Room 206
Corpus Christi, Texas 78401
Telephone: (361)-888-0414
RESPONDENT’S APPELLATE COUNSEL Douglas Norman
Assistant District Attorney
901 Leopard St. Room 206
Corpus Christi, Texas 78401
Telephone: (361)-888-0414
PRESIDING DISTRICT JUDGE Honorable Missy Medary
347th District Court
901 Leopard St., 8th Floor
Corpus Christi, Texas 78401
NUECES COUNTY DISTRICT ATTORNEY Mark Skurka
Assistant District Attorney
901 Leopard St. Room 206
Corpus Christi, Texas 78401
Telephone: (361)-888-0414
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................... i
TABLE OF CONTENTS ............................................................. iii
INDEX OF AUTHORITIES ........................................................ iv
STATEMENT REGARDING ORAL ARGUMENT .................. 1
STATEMENT OF THE CASE .................................................... 1
STATEMENT OF PROCEDURAL HISTORY .......................... 3
ISSUE PRESENTED ................................................................... 3
PETITIONER’S PREVIOUS ARGUMENT ............................... 3
PRAYER ...................................................................................... 9
CERTIFICATE OF SERVICE..................................................... 10
CERTIFICATE OF COMPLIANCE ........................................... 11
APPENDIX ................................................................................ 12
iii
INDEX OF AUTHORITIES
Cases Page
Memorandum Opinion - Barrow v. State, 241 S.W.3d
919, 920-24 (Tex. App. – Eastland 2007, pet. ref’d) ....................7
State v. Majors, 318 S.W.3d 850, 859 (Tenn. 2010) .....................8
State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) .......4
Swabado v. State, 597 S.W.2d 361, 363-364
(Tex.Crim.App. 1980) ...................................................................4
Vaughn v. State, 33 S.W.3d 901 (Tex. App. – Houston [14th
Dist.], nopet.) .................................................................................6, 7
Statutes and other authorities
Tex. Code Crim. Proc. arts. 21.02, 21.11 ....................................... 3. 4
Tex. Code. Crim. Proc. art 27.09 ..................................................5
U.S. CONST. amend. VI ................................................................3
TEX. CONST. art. I, § 10...............................................................3, 4
TEX. PEN. CODE §37.09 ..................................................................4
iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT REGARDING ORAL ARGUMENT
In the event this petition is granted, Petitioner requests oral argument. Oral
argument would assist to resolve whether, in an indictment, the term “an unknown
substance” is sufficient so as to apprise a defendant of what “thing” was considered
“evidence” alleged to have been altered, destroyed or concealed.
STATEMENT OF THE CASE
On April 24, 2014, Petitioner was charged by indictment with Tampering
with Physical Evidence. (C.R 5-6)1. The description and nature of the original
charge - in relevant part - against Petitioner stated that she:
. . . on or about December 19, 2013, . . . did then and there, while knowing
that an investigation was in progress, to wit: A DRUG INVESTIGATION,
intentionally and knowingly ALTER, or DESTROY, or CONCEAL, [] with
the intent to impair its verity or availability as evidence in any subsequent
investigation or official proceeding relating to the offense. . .
(C.R. 5-6) ([] noted in place of blank space originally in indictment).
Based, inter alia, on the fact that the above-noted indictment did not identify
ANYTHING that was altered, destroyed or concealed, Petitioner filed her Motion
to Quash and Exception to Form of Indictment and a hearing was thereafter
conducted. At the conclusion of said hearing, Respondent agreed (without order
1
Within this brief, references to the Clerk’s record will be denoted by “C.R.” and those to the Court Reporter’s
record will be denoted as “T.R.”
1
from the court) to amend said indictment and did so, adding/handwriting in the
phrase “an unknown substance” (in place of the blank space) within the indictment.
(C.R. 5).
On May 12, 2014, Petitioner filed - based on the mere substitution of “an
unknown substance” in place of the original blank space and nothing describing
any “unlawful” substance and/or any description/explanation of what evidentiary
value such “unknown substance” had - her Defendant’s Amended Motion to Quash
and Exception to Form of Indictment. (C.R. 17-20).
On June 4, 2014, the Court - after conducting a hearing (during which the
Court questioned not only the sufficient of alleging an “unknown substance” but
also the sufficiency of the allegation of an investigation “in progress” without
more) - granted the motion and entered an Order pertaining to same. (C.R. 29,
T.R. 1-18).
Respondent thereafter filed their notice of the instant appeal and on July 16,
2015, a Panel of the Thirteenth Court of Appeals issued its Memorandum Opinion,
wherein the Court determined that no description of any “thing” need be alleged in
an information for tampering. Such decision is completely contrary to the purpose
of an indictment, based on vastly irrelevant case law and results in absurd and
unconstitutional charging documents. In short, the Panel determined that saying a
2
person tampered with “something” or “a thing” is sufficient to provide notice to a
defendant.
STATEMENT OF PROCEDURAL HISTORY
In an unpublished opinion delivered July 16, 2015, the Thirteenth Court of
Appeals overturned the judgment of the trial court. On August 17, 2015, Petitioner
filed her Motion for En Banc Rehearing, which was denied on August 24, 2015.
Petitioner now files this, her Petition for Discretionary Review pursuant
Rule 68 of the Texas Rules of Appellate Procedure.
ISSUE PRESENTED Whether the addition of the term “an unknown
substance” is sufficient so as to apprise a defendant of what “thing” was considered
“evidence” alleged to have been altered, destroyed or concealed?
PETITIONER’S PREVIOUS ARGUMENT
Simply adding the term “an unknown substance” as the object of a
tampering charge does not provide sufficient notice of what it is a Defendant is
alleged to have “tampered with” anymore than does a blank space in lieu thereof.
The right to notice of pending criminal charges is set forth in both the United
States and Texas constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, §
10; State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). In order to provide
same, a charging instrument must be specific enough to convey adequate notice of
3
the nature of the accusations so that the accused may prepare a defense. Moff at
601; see Tex.Code Crim.Proc. arts. 21.02, .11. In particular, an indictment must
allege on its face facts necessary 1) to show that an offense was committed, 2) to
bar a subsequent prosecution for the same offense, and 3) to give the defendant
precise notice of what he or she is being charged with. Swabado v. State, 597
S.W.2d 361, 363-364 (Tex.Crim.App. 1980). Petitioner would assert - as the
District Court found - that these tenants of notice were not met in this case at hand.
As noted above, the Texas Penal Code section under which Petitioner was
charged with “Tampering With or Fabricating Physical Evidence”, in pertinent
part, states as follows:
A person commits an offense if, knowing that an investigation or
official proceeding is pending or in progress, he 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.
(TEX.PEN.CODE §37.09) (emphasis added). In this particular case, Petitioner was
initially charged with tampering with “nothing” and then later with tampering with
“something” that was unknown (apparently the State cannot even describe if such
unknown substance was even an illegal substance or simply a piece of gum). And
so, how would Petitioner (or those similarly situated) defend against such an
accusation of tampering with a “substance” without any description of whether
4
such was illegal narcotics or otherwise? The truth is that they cannot and even if
they could, an acquittal of tampering with such unknown substance certainly
would not prevent a retrial for something known and later charged. In other words,
if during the first trial it was determined that the “unknown substance” was gum
and hence an acquittal was secured, such acquittal would not prevent a subsequent
trial if it became known and/or alleged that such was actually an illegal substance
of some kind. In any case, the State in bringing a charge must have some kind of
idea as to what item was tampered with and what would make it some evidence of
a crime. Despite bringing such charges, the State in this case has still failed to
provide any such description and based on the indictment, one would be
completely unaware as to whether such item was a piece of paper, illegal narcotics
or a breath mint. If the State believed drugs were involved, then should not the
indictment at the very least state that? Without reiterating the obvious, but in light
of same, no Defendant would have any idea what the State is alleging and as such,
the indictment is insufficient pursuant to the grounds specified in Article 27.09 of
the Texas Code of Criminal Procedure and said indictment did not comply with the
requirements of Article 21.02 of the Texas Code of Criminal Procedure, to wit that
it does not set forth the offense in plain or intelligible language, does not set forth
the necessary elements (either the knowledge of an “in progress” investigation
5
and/or the identity of the item tampered with) and does not adequately inform
Petitioner of the act(s) the State will rely upon to constitute the crime of Tampering
with Physical Evidence.
In support of Respondent’s assertion that alleging a person has tampered
with “an unknown substance” - without any description of what the substance is
believed to have been at all - is completely without merit and has no authority in
the law. In fact, the only case cited by the Respondent in its original response to
Petitioner’s motion was Vaughn v. State, 33 S.W.3d 901 (Tex. App. – Houston
[14th Dist.], no pet.). The fact that the State selected this case as its sole support for
its “amendment” says volumes. Not only is the case without any writ history and
has never been relied upon by any other Court in any relevant way, such case is
factually different and has no bearing on the issues at hand. In Vaughn, the issue
was not the indictment (alleging an “unknown substance”), as the Defendant
seemed to have failed to object and/or motioned to quash same. While that may be
true of the Defendant in Vaughn, that is not true in this case, where the instant
Defendant is asserting a concern with the charging instrument. In Vaughn, the only
issue was whether testimony concerning crack (a known substance) being
“tampered with” was sufficient to prove the allegation (of an unknown substance).
As such, Vaughn offers little, if any insight to this Court, where it is expected that
6
NO evidence (must less even an allegation of some evidence) of some illicit drug
exist. In addition and further, in Vaughn, there is actually no discussion of what
exactly the wording of the indictment was and yet, Respondent attempts to utilize
such case in this one as support.
In addition to Vaughn, Respondent also cites to - and the Court of Appeals
adopts in support of its Memorandum Opinion - Barrow v. State, 241 S.W.3d 919,
920-24 (Tex. App. – Eastland 2007, pet. ref’d), simply stating that a tampering
conviction was upheld where the substance appearing to be cocaine was
swallowed but not recovered. While such might be true, whether there was
evidence presented during trial to support a valid indictment is not the question
before this Court. It is whether there was a valid indictment existed to begin with.
Again, the Barrow opinion never once mentions what the indictment alleged,
whether such indictment was ever challenged and/or discusses the application of
the facts to the indictment; and yet, Respondent relies on such case for use in this
appeal. In short, Barrow does not address the issues presented herein and as such,
offers no assistance with same. In fact, in Barrow, the evidence seemed to be
concerning an allegation that the officers saw what they suspected was either
methamphetamine or cocaine and one can assume that such was the allegation in
the indictment - a fact that does not exist in this case.
7
In addition, Respondent cites to State v. Majors, 318 S.W.3d 850, 859
(Tenn. 2010), for the proposition that in Texas, there is no requirement to describe
what evidence is alleged to have been tampered with. Without addressing the
merits of Majors based on Tennessee law, such reliance is misplaced for two
reasons. First of all, the Texas Supreme Court has determined that upon the filing
of a Motion to Quash, the State is required to provide the substance of the evidence
allegedly tampered with. Swabado v. State, 597 S.W.2d 361, 364 (Tex.Crim.App.
1980) (finding that in prosecution for tampering with a government record,
sufficient notice identifying the alleged criminal acts required the State to identify
the specific names “falsely” entered and supporting the tampering charge).
Secondly, even if the Texas Supreme Court had not spoken concerning the
tampering statute, the indictment in Majors at least tracked the wording of the
tampering statute, alleging “any record, document, or thing”, while in the instant
case, the State/Respondent did not. Accordingly, even if Majors was applicable in
Texas, here the State only alleged an unknown substance and did not even track the
wording of the statute concerning tampering.
Based on the above, Petitioner requested that this Court overturn the Court
of Appeals opinion and affirm the District Court’s decision granting of the Motion
to Quash in this case. While Petitioner agrees - as the Court of Appeals found - that
8
the State does not need to “specifically identify” with exact precision the “thing”
tampered with, it should be necessary that the State provide at least a description
(i.e. “unknown but expected narcotic”, “rock-like substance presumably crack,”
“baggie containing a white cocaine-like substance”) that constitutes the probable
cause for the arrest. In other words, if there is sufficient probable cause to arrest for
tampering, then there should exist sufficient information to formulate a description
of such in an indictment. To allow the State to allege nothing is simply contrary to
the purpose of an indictment and provides no information from which any person
may defend themselves.
PRAYER
WHEREFORE PREMISES CONSIDERED, Petitioner, Mary Zuniga,
prays that upon due reconsideration of the arguments and authorities contained
herein, as well as oral argument, if any, that this Honorable Court of Criminal
Appeals overrule the Thirteenth Court of Appeals decision and affirm the District
Court’s granting of Defendant’s Motion to Quash. Petitioner further prays for any
other relief, at law or in equity, specific or general, to which she may show herself
justly entitled, and for which she shall forever pray.
Respectfully submitted,
GALE LAW GROUP, PLLC
P.O. Box 2591
Corpus Christi, Texas 78403
Telephone: (361) 808-4444
9
Telecopier: (361) 232-4139
By: /s/ Christopher J. Gale
Christopher J. Gale
Texas Bar No. 00793766
Email: Chris@GaleLawGroup.com
Attorney for Petitioner
CERTIFICATE OF SERVICE
I hereby certify that on this the 8th day of October 2015, a true and correct
copy of the foregoing was forwarded to the following counsel of record by the
means indicated below:
Doug Norman Via E-File Notification
Assistant District Attorney
NUECES COUNTY DISTRICT ATTORNEY’S OFFICE
Texas Bar Number 24078729
901 Leopard, Room 206
Corpus Christi, Texas 78401
State Prosecuting Attorney Via First Class Mail
P.O. Box 12405
Austin, Texas 78711
/s/ Christopher J. Gale
Christopher J. Gale
10
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the
undersigned certifies this Petition for Discretionary Review complies with the
type-volume limitations announced in Rule 9.4(i)(2)(D) of the Texas Rules of
Appellate Procedure.
1. The undersigned certifies that the Petition for Discretionary Review contains
no more than 2,719 words in proportionately spaced typeface, an amount of
words within the limits set forth in Rule 9.4(i)(2)(D).
2. The brief has been prepared in proportionately spaced typeface using
WordPerfect 12 in 14 pt.Times New Roman. Footnotes are used in this
Petition for Discretionary Review on one occasion. The text has been
included and accounted for in the above word count.
3. The undersigned understands a material misrepresentation in completing this
certificate, or circumvention of the type-volume limits states in Rule
9.4(i)(2)(D) of the Texas Rules of Appellate Procedure, may result in the
Court striking the Petition.
/s/ Christopher J. Gale
Christopher J. Gale
11
APPENDIX:
JUDGEMENT AND OPINION FROM THIRTEENTH
COURT OF APPEALS .............................................................. Tab 1
NOTICE OF DENIAL OF PETITION FOR REHEARING
EN BANC ..................................................................................... Tab 2
12
TAB NUMBER 1
NUMBER 13-14-00316-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
MARY ZUNIGA, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Rodriguez
By one issue, appellant, the State of Texas, challenges the trial court’s order
quashing count one of the indictment against appellee Mary Zuniga. We reverse and
remand.
I. BACKGROUND
Zuniga was pulled over by a police officer for allegedly running a stop sign in front
of her home. The officer placed Zuniga under arrest when he observed a bottle of
controlled medication in Zuniga’s vehicle for which she was not able to show a valid
prescription. 1 At the hearing on Zuniga’s motion to quash the indictment, the State
provided the following recitation of events:
They handcuffed her and put her in the back of the car, this is all on video.
As she’s sitting in the back of the police car with her hands handcuffed
behind her back, you see her on the video moving her hands towards her
side, reaching into her crotch area, pulling something out with her hands
cupped because apparently she knows an officer is watching her. Moves
her hands towards her mouth and moves her head down, like she
swallowed something.
At the hearing, the State also stipulated that an officer would testify at trial that he saw
Zuniga swallow a white substance in a baggy. Zuniga was taken to the hospital where
medical professionals pumped Zuniga’s stomach and performed an x-ray. No illegal
substance or baggie was found. The State neither tested the results of Zuniga’s stomach
purge for an illegal substance nor requested any testing of her blood.
Zuniga was indicted on two counts: tampering with physical evidence and assault
on a public servant. The first count (the only count at issue in this appeal) alleged:
Mary Zuniga, defendant, on or about, December 29, 2013, in Nueces
County, Texas, did then and there, while knowing that an investigation was
in progress, to wit: A DRUG INVESTIGATION, intentionally and knowingly
ALTER, OR DESTROY, OR CONCEAL, an unknown substance with intent
to impair its verity or availability as evidence in any subsequent investigation
or official proceeding related to the offense.
The phrase “an unknown substance,” was originally omitted. Zuniga moved to
quash the indictment on the grounds that its allegations were insufficient. It was during
the hearing on Zuniga’s first motion to quash the indictment that the State made the
1 Zuniga later provided a valid prescription—the medicine was for her child.
2
handwritten notation—unknown substance—on the indictment. In response, Zuniga
challenged the sufficiency of the modified indictment, complaining that “an unknown
substance” was not sufficient to charge Zuniga with tampering with physical evidence
pursuant to the code of criminal procedure. The trial court agreed and granted Zuniga’s
motion to quash count one of the indictment by written order. This appeal followed.
II. IS AN “UNKNOWN SUBSTANCE” A “THING”
By a single issue, the State contends that the “unknown substance” language in
the indictment was sufficient to charge Zuniga with the crime of tampering with physical
evidence pursuant to section 37.09 of the Texas Penal Code. See TEX. PENAL CODE
ANN. § 37.09 (West, Westlaw through Ch. 49, 2015 R.S.). Zuniga responds that the
indictment was facially defective because it did not include all elements of the offense
that the State must prove.
A. Applicable Law
The sufficiency of a charging instrument presents a question of law that we review
de novo. Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010). The right to
notice of pending criminal charges is set forth in both the United States and Texas
constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see State v. Moff, 154
S.W.3d 599, 601 (Tex. Crim. App. 2004). In order to satisfy the defendant’s
constitutional right to notice, an indictment must be specific enough to inform him or her
of the nature of the accusation such that the accused can prepare a defense. TEX. CODE
CRIM. PROC. ANN. art. 21.11 (West, Westlaw through Ch. 49, 2015 R.S.); Moff, 154 S.W.3d
at 601. The indictment should state everything that is necessary to be proven. TEX.
3
CODE CRIM. PROC. ANN. art. 21.03.
Generally, when an indictment tracks the language of a penal statute, it will satisfy
constitutional and statutory requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex.
Crim. App. 1998) (noting that the State need not allege facts that are merely evidentiary
in nature). In the context of a motion to quash, we look to whether the indictment facially
alleges the elements of the offense; we do not look at the evidence supporting the
indictment. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (opinion
on reh’g); State v. Clarke, 880 S.W.2d 854, 854–55 (Tex. App.—Corpus Christi 1994, pet.
ref’d).
Section 37.09(a)(1) of the Texas Penal Code defines the offense of tampering with
physical evidence as: (1) knowing that an investigation or official proceeding is pending
or in progress; (2) a person alters, destroys, or conceals any record, document, or thing;
(3) with intent to impair its verity, legibility, or availability as evidence in the investigation
or official proceeding. TEX. PENAL CODE. ANN. § 37.09(a)(1); Rabb v. State, 434 S.W.3d
613, 616 (Tex. Crim. App. 2014) (citing Williams v. State, 270 S.W.3d 140, 142 (Tex.
Crim. App. 2008)). The statute specifies that the putative evidence must be a record,
document or thing, though it does not require that the “thing” be, in and of itself, of a
criminal nature. See TEX. PENAL CODE ANN. § 37.09(a)(1); Williams, 270 S.W.3d at 144.
B. Discussion
We are asked to determine whether an “unknown substance” can be a “thing”
under section 37.09 of the penal code such that an indictment alleging the same complies
with the constitutional notice requirements and the Texas Code of Criminal Procedure.
4
See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. arts. 21.03.,
21.11 (West, Westlaw through Ch. 49, 2015 R.S.); see also Rosenbaum, 910 S.W.2d at
948.
Though the prosecutor stated at the hearing on the motion to quash that the
arresting officer would testify that he observed Zuniga swallow a baggie containing a
white substance, the indictment in this case did not specifically identify what the State
alleges Zuniga destroyed: it merely states that the item allegedly destroyed was an
“unknown substance.” However, because Zuniga challenged the sufficiency of the
charging document itself, the trial court could not consider any evidence and was limited
to the face of the indictment itself in making its determination to quash. See Rosenbaum,
910 S.W.2d at 948.
In the present case, the State’s indictment did not specifically identify the alleged
physical evidence destroyed; however the statute does not require a high degree of
specificity in identifying the destroyed evidence. See, e.g., Barrow v. State, 241 S.W.3d
919, 923–24 (Tex. App.—Eastland 2007, pet. ref’d) (affirming a conviction for tampering
when Barrow swallowed a “rock-like” substance believed to be crack cocaine); see also
Perry v. State, No. 06-08-00039-CR; 2009 WL 1138812, at *6 (Tex. App.—Texarkana
Apr. 29, 2009, pet. ref’d) (mem. op., not designated for publication) (holding that the
evidence was legally sufficient to support a tampering conviction even though the State
did not prove that the destroyed evidence was Seroquel, as alleged in the indictment,
because the State did put forth evidence that something of evidentiary value was
destroyed). Instead, a facially complete indictment in this case must allege every fact
5
necessary to convict Zuniga of tampering with physical evidence pursuant to section
37.09. See TEX. CODE. CRIM. PROC. ANN. art. 21.03; Rosenbaum, 910 S.W.2d at 948.
Based on the Texas Court of Criminal Appeals’ holdings in Williams and Barrow, we
determine the State is not required to allege, as an element of the offense, the specific
identity of the destroyed evidence. See Williams, 241 S.W.3d at 923–24; Barrow, 240
S.W.3d at 142–44.
The statute focuses not on what was destroyed, but instead focuses on whether
the accused acted with the intent of impairing its use as evidence. See TEX. PENAL CODE
ANN. § 37.09(a)(1); Barrow, 240 S.W.2d at 142–44. Though identity of the putative
evidence destroyed will be relevant at trial, it will be relevant not because it is an element
of the offense, but because it is evidence of intent. As such, the identity of the destroyed
thing is evidentiary and is not required to be included in the indictment. See TEX. CODE
CRIM. PROC. ANN. art. 21.03; TEX. PENAL CODE ANN. 37.09(a)(1); Mays, 967 S.W.2d at
406.
We sustain the State’s sole issue.
III. CONCLUSION
We reverse the trial court’s order quashing count one of the State’s indictment and
remand for further proceedings consistent with this opinion.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of July, 2015.
6
THE THIRTEENTH COURT OF APPEALS
13-14-00316-CR
The State of Texas
v.
Mary Zuniga
On appeal from the
347th District Court of Nueces County, Texas
Trial Cause No. 13-CR-4404-H
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be reversed and the cause
remanded to the trial court. The Court orders the judgment of the trial court
REVERSED and REMANDED for further proceedings in accordance with its opinion.
We further order this decision certified below for observance.
July 16, 2015.
TAB NUMBER 2
FILE COPY
NUECES COUNTY COURTHOUSE
CHIEF JUSTICE
901 LEOPARD, 10TH FLOOR
ROGELIO VALDEZ
CORPUS CHRISTI, TEXAS 78401
361-888-0416 (TEL)
JUSTICES
361-888-0794 (FAX)
NELDA V. RODRIGUEZ
DORI CONTRERAS GARZA
HIDALGO COUNTY
GINA M. BENAVIDES
Court of Appeals
ADMINISTRATION BLDG.
GREGORY T. PERKES
100 E. CANO, 5TH FLOOR
NORA L. LONGORIA
EDINBURG, TEXAS 78539
956-318-2405 (TEL)
CLERK
CECILE FOY GSANGER Thirteenth District of Texas 956-318-2403 (FAX)
www.txcourts.gov/13thcoa
August 24, 2015
Hon. Christopher J. Gale Hon. Douglas K. Norman
Attorney at Law Asst. District Attorney
P. O. Box 2591 901 Leopard, Room 206
Corpus Christi, TX 78403 Corpus Christi, TX 78401
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Hon. Amie Pratt Hon. Mark Skurka
Gale Law Group, PLLC District Attorney
American Bank Plaza 901 Leopard Street, Room 205
Corpus Christi, TX 78401 Corpus Christi, TX 78401
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Re: Cause No. 13-14-00316-CR
Tr.Ct.No. 13-CR-4404-H
Style: The State of Texas v. Mary Zuniga
Appellee’s motion for rehearing en banc in the above cause was this day
DENIED by this Court.
Very truly yours,
Cecile Foy Gsanger, Clerk
CFG:dot