Richard Lee Rabb v. State , 2012 Tex. App. LEXIS 9031 ( 2012 )

NO. 07-11-00078-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 31, 2012
RICHARD LEE RABB, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 382ND DISTRICT COURT OF ROCKWALL COUNTY;
NO. 2-10-246; HONORABLE BRETT HALL, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION ON REHEARING
We withdraw our opinion and judgment dated September 28, 2012, and
substitute the following in its place. We overrule the State’s motion for rehearing.
Appellant Richard Lee Rabb appeals from his conviction by bench trial of the
third degree felony offense of tampering with physical evidence and the resulting
sentence of six years in the Institutional Division of the Texas Department of Criminal
Justice. Appellant contends that the evidence is insufficient to show that, knowing an
investigation was in progress, he destroyed an item. We agree, and will reverse.
Background
Appellant was charged via an amended indictment with “knowing that an
investigation was in progress, to-wit: theft, intentionally or knowingly destroy[ed] a
plastic baggie containing pills with intent to impair its availability as evidence in the
investigation.” After his not-guilty plea, the case was tried to the bench.
Evidence showed that appellant and his stepbrother James Reynolds were in a
Wal-mart store in Rockwall. A store employee watched while Reynolds selected and
later unwrapped some small items from the electronics department. When he did not
pay for the items, Reynolds was detained by employees as he left the checkout area.
The store employee also had seen another man standing in the same area of the store
as Reynolds. In response to questions, Reynolds told store employees that appellant
was with him. He provided a description of appellant. Police were called.
While Reynolds was being questioned, word was received that a store employee
had noticed a man, matching the description Reynolds had provided, behaving
suspiciously in the store. A store asset-protection coordinator and a Rockwall police
sergeant who had arrived stopped appellant at the front of the store. The events that
followed were recorded by the store’s security camera, and the court saw the video
recording while witnesses narrated. The sergeant told appellant his stepbrother was
being detained. He asked appellant, “Hey, do you have any of the store’s merchandise
on you?” Appellant replied that he did not have any of the store’s merchandise on his
person and stated, “You can search me if you want.” Appellant then placed his hands
behind his head and moved to stand beside the wall. The sergeant began to search
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appellant, and the store employee noticed that appellant was holding in his hand a small
plastic baggie he had removed from his back pocket. When the sergeant was made
aware of it, he testified, he saw “sticking out of the corner of [appellant’s] gripped,
closed fist the corner of a plastic bag.” The sergeant could not see what was in the
baggie. He reached up to grab appellant’s hand to take the baggie, and as he did so,
appellant pushed him away and put the baggie into his own mouth.
A struggle occurred during these events, and appellant was subdued only after
another officer applied a taser. At some point, after ignoring repeated commands to spit
the baggie from his mouth and cautions of the dangers of swallowing drugs, he
swallowed the baggie. An ambulance was summoned. Appellant told the paramedic
the baggie contained pills that were not prescribed to him. The baggie was never
recovered, and the record contains no mention of any effort to do so.
The trial court found appellant guilty as charged in the indictment and assessed
punishment as noted. This appeal followed.
Analysis
Appellant presents two appellate issues, contending the evidence was
insufficient to establish (1) that he destroyed the baggie, and (2) that he knew an
investigation was in progress. We find his first issue dispositive.
In reviewing issues of evidentiary sufficiency, an appellate court considers all the
evidence, viewing it in the light most favorable to the verdict to determine whether a
rational fact finder could have found each element of the offense beyond a reasonable
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doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
Brooks v. State, 323 S.W.3d 893, 902 (Tex.Crim.App. 2010). We measure the
sufficiency of the evidence by the elements of the offense as defined in the
hypothetically correct jury charge for the case. Cada v. State, 334 S.W.3d 766, 773
(Tex.Crim.App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.
1997)). That standard applies to evidence presented in a bench trial as well as to cases
tried to a jury. Malik, 953 S.W.2d at 240. Because the hypothetically correct charge is
one “authorized by the indictment,” “if the State pleads one specific element from a
penal offense that contains alternatives for that element, the sufficiency of the evidence
is measured by the element that was actually pleaded, not any other statutory
alternative element.” Cada, 334 S.W.3d at 773-74.
Appellant’s issue challenging the sufficiency of the evidence he destroyed the
baggie was not raised in the trial court. Nonetheless, he may raise it now. Moff v.
State, 131 S.W.3d 485, 488-89 (Tex.Crim.App. 2004) (claim regarding sufficiency of
evidence need not be preserved for appellate review at trial level and is not forfeited by
failure to do so).
Section 37.09(a)(1) of the Penal Code provides, in pertinent part, that “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 . . . thing 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) (West 2011). As noted, the State’s amended
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indictment alleged, and its evidence showed, the “thing” in this case to be a plastic
baggie containing pills.
As the Court of Criminal Appeals explained in Williams v. State, in section
37.09(a)(1) of the tampering with evidence statute, the word “destroys” must have an
effect distinct from that of “alters” and “conceals,” else the Legislature would not have
used the three different words. Williams v. State, 270 S.W.3d 140, 146 (Tex.Crim.App.
2008). Because “destroys” is not statutorily defined for this purpose, the court sought its
common, ordinary meaning, and interpreted section 37.09(a)(1) “to mean that a
destroyed thing has been ruined and rendered useless.” Id. The court’s opinion also
notes that its interpretation of the term “echoes a factor” referred to in Spector v. State,
“that a thing is destroyed when it has lost its identity and is no longer recognizable.” Id.,
citing Spector v. State, 746 S.W.2d 945, 945-46 (Tex.App.—Austin 1988, no pet.); see
Anderson v. State, Nos. 05-09-0192-CR, 05-09-01930-CR, 2011 Tex. App. LEXIS 1867
(Tex.App.—Dallas Mar. 15, 2011) (mem. op., not designated for publication) (applying
Williams definition).
Appellant argues the evidence may show he concealed the baggie but cannot
show he destroyed it. The Court of Criminal Appeals has not yet addressed the
meaning of the term “conceal” in section 37.09(a)(1), but courts of appeals, including
this court, have addressed it. The Fort Worth Court of Appeals held the word means
“the act of removing from sight or notice; hiding.” Rotenberry v. State, 245 S.W.3d 583,
589 (Tex.App.—Fort Worth 2007, pet. ref’d). We found it to mean “to prevent disclosure
or recognition of” or “to place out of sight” in Lujan v. State, No. 07-09-0036-CR, 2009
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Tex.App. LEXIS 7121 (Tex.App.—Amarillo Sept. 9, 2009, no pet.) (mem. op., not
designated for publication), and also have applied a definition “to hide or to keep from
observation, discovery or understanding.” Young v. State, No. 07-09-0229-CR, 2010
Tex.App. LEXIS 9459,*3-4 (Tex.App.—Amarillo Nov. 30, 2010 (mem. op., not
designated for publication), citing Hollingsworth v. State, 15 S.W.3d 586, 595
(Tex.App.—Austin 2000, no pet.). See also Thornton v. State, No. 07-11-0069-CR,
2012 Tex.App. LEXIS 6493, at *5 (Tex.App.—Amarillo Aug. 7, 2012, no pet.) (mem. op.,
not designated for publication) (noting same definitions).
Young was charged with tampering with evidence after he swallowed a rock of
cocaine. Young, 2010 Tex. App. LEXIS 9459, at *2. We found the evidence sufficient
to prove his doing so concealed the cocaine. Id. at *3-4. In Lewis v. State, 56 S.W.3d
617 (Tex.App.–Texarkana 2001, no pet.), the court found evidence sufficient to prove
the defendant concealed cocaine by swallowing it, applying the “hide or keep from
observation” definition. Lewis, 56 S.W.3d at 625, citing Hollingsworth, 15 S.W.3d at
595.
The State argues appellant did not merely conceal the baggie because officers
had seen it before he put it in his mouth, and he made no effort to hide his action of
stuffing it into his mouth. Once the baggie was seen, the State argues, it was too late
for appellant to conceal it, leading to the inference that he put it into his mouth to
destroy it. 1 Guilt under section 37.09(a)(1) requires proof of a specific intent to impair
1
Here and elsewhere in its argument on appeal, the State focuses on the baggie.
The indictment alleges appellant destroyed “a plastic baggie containing pills.” The
record is clear that the officers did not see what was in the baggie. The only evidence
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the verity, legibility or availability of the item as evidence. Stewart v. State, 240 S.W.3d
872, 874 (Tex.Crim.App. 2007) (statute “requires intent as to a particular result, namely,
impairing a thing’s availability as evidence”). Even were we to agree with the State’s
argument that the evidence reflects appellant’s intent to destroy rather than conceal the
baggie and its contents, the argument misplaces the intent element of the offense and
does not aid our evaluation of the evidence supporting the conclusion appellant
destroyed the baggie or the pills.
The State also contends the court rationally could have found appellant’s actions
destroyed the baggie and its contents, arguing his actions caused their “complete
ruination.” As the State sees it, appellant rendered the baggie and its contents “wholly
‘unidentifiable’ and ‘completely useless’ as evidence in any past, present or future
investigation.” It points out that once swallowed, the baggie was never recovered, its
contents could no longer be ascertained or identified and it could no longer be used as
evidence against appellant in any way. In Williams, the court found inadequate the
definitions of “destroy” applied in Spector, 746 S.W.2d at 945-46, because they focused
on the evidentiary value of collected remains of the item allegedly destroyed. Williams,
270 S.W.3d at 145-46. The State’s argument here, focusing on the evidentiary value of
the assertedly-destroyed item, contains the same problem. Under the State’s
argument, the baggie and pills have been destroyed because they have not been
recovered and so cannot be used as evidence. Just as the court in Williams saw
difficulty with a definition of destroy that it found would preclude destruction when parts
of its contents came from appellant’s response to the paramedic’s question, to the effect
that it contained prescription pills.
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are recovered, there is difficulty with a definition that equates concealment with
destruction when an item is not recovered.
The State’s evidence here does not show that the baggie or pills are
unidentifiable or no longer recognizable, useless or ruined. It shows nothing of the
condition of the bags or pills that resulted from appellant’s actions. The evidence shows
merely their location following his actions. Appellant’s acts fit squarely within actions
courts have found to constitute concealment under section 37.09(a)(1). He placed the
baggie in his mouth and swallowed it. The baggie and pills were thus placed out of
sight, hidden and kept from observation, discovery or understanding, their disclosure or
recognition prevented. These actions constitute “conceal[ing]” under section
37.09(a)(1). Cf. McElroy v. State, No. 13-10-174-CR, 2011 Tex.App. LEXIS 793, at *8
(Tex.App.—Corpus Christi Feb. 3, 2011, no pet.) (mem. op., not designated for
publication) (finding evidence defendant chewed hole in bag containing suspected
cocaine, chewed and ingested the substance, and lost consciousness was sufficient to
support conviction for destroying evidence).
Certainly there is the possibility of overlap in the application of the three means of
tampering listed in section 37.09(a)(1) to a particular set of facts. See Williams, 270
S.W.3d at 147 (Womack, J., concurring) (“while ‘destroy’ and ‘alter’ are different, they
may not be mutually exclusive. When something is destroyed, it may be said to have
been altered”). But applying the terms in a way that maximizes their overlap waters
down the distinct effect we should give the particular words the Legislature used.
Williams, 270 S.W.3d at 146. We see no reason to apply Williams’ clear definition of
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destruction to an action so clearly constituting a concealment, with the result that every
item successfully concealed also will be considered destroyed. 2
The State cites Sanders v. State, 855 S.W.2d 151 (Tex.App.—Houston [14th
Dist.] 1993, no pet.) for the proposition that swallowing an item can constitute its
destruction as well as its concealment. Sanders is not a tampering with evidence case
but rather involved a motion to suppress in a drug possession case. The court upheld
denial of the defendant’s motion to suppress, finding the officer’s action justified by the
“possible destruction of evidence” when the suspect put drugs into his mouth. Id. at
153. The sufficiency of evidence of destruction was not at issue in Sanders, nor was
the distinction between destruction and concealment, and we find the case inapplicable
here.
We are conscious this case was transferred to us from the Dallas Court of
Appeals, and conscious the opinion of that court in Anderson, 2011 Tex.App. LEXIS
1867, at *9-10, applied the term “destroyed” and not the term “concealed” to drugs that
the defendant flushed down a toilet. The court, however, was not addressing the
2
On rehearing, the State urges that we should consider application of the terms
“conceal” and “destroy” to be sufficiently overlapping to find the evidence sufficient in
this case. We note the Court of Criminal Appeals declined to adopt a similar approach
in its recent decision in Cada, 334 S.W.3d at 776 (noting that even though in the terms
under examination in that case “there may be some overlap and considerable
commonality,” the terms were “distinct and separate statutory elements of the offense”).
We note also the guidance for preparation of charging instruments the Court of Criminal
Appeals provided in Cada, 334 S.W.3d at 776 (pointing out that in lieu of pleading the
“correct element,” the State may plead “several of the statutory alternatives…and then
includ[e] only those for which there was some evidence” on presentation of the case to
the finder of fact).
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distinction between the two terms, and, in our judgment, the opinion sheds no light on
the manner in which the Dallas court would have decided this case had it not been
transferred. We do not find our resolution of the case precluded by the requirements of
Rule of Appellate Procedure 41.3. Tex. R. App. P. 41.3 (requiring transferee court to
decide case in accordance with precedent of transferor court).
A fact finder is permitted to draw reasonable inferences from the evidence
presented. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007), quoting Jackson,
443 U.S. at 318-19 (reviewing court must defer to responsibility of trier of fact to, inter
alia, draw reasonable inferences from basic facts to ultimate facts). Despite the
absence of direct evidence the baggie or its contents were destroyed by appellant’s
actions, if one reasonably can infer they were destroyed by their passage into
appellant’s digestive tract, the evidence is sufficient. Hooper, 214 S.W.3d at 13
(assessment of sufficiency of evidence involves determination whether, based on all the
evidence and reasonable inferences therefrom, rational fact finder could have found
guilt). We see no basis here for such an inference. See Hooper, 214 S.W.3d at 16
(inference is conclusion reached by considering other facts and deducing a logical
consequence from them). On this record, any conclusion regarding the future of the
baggie and its contents after appellant swallowed them would simply be speculation. Id.
(speculation is mere theorizing or guessing). Cf. Young, 2010 Tex. App. LEXIS 9459, at
*4 fn.1 (nurse testified swallowed cocaine “would pass through the system”).
Viewing the evidence in the proper light, and crediting all reasonable inferences,
we nonetheless find no rational trier of fact could have found appellant destroyed the
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baggie or its contents. Accordingly, we sustain his first issue, 3 reverse the trial court’s
judgment of conviction and render a judgment of acquittal.
James T. Campbell
Justice
Publish.
3
Because his first issue is dispositive, our consideration of appellant’s second
appellate issue is unnecessary. Tex. R. App. P. 47.1.
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