Jamai Nicole Barron v. State ( 2021 )

Opinion filed April 15, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00125-CR
__________
JAMAI NICOLE BARRON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 132nd District Court
Scurry County, Texas
Trial Court Cause No. 10597
OPINION
The jury convicted Appellant, Jamai Nicole Barron, of the second-degree
felony offense of tampering with physical evidence, namely human corpses. See
TEX. PENAL CODE ANN. § 37.09(c), (d)(1) (West 2016). The jury assessed
Appellant’s punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of ten years. Appellant’s sentence of
confinement was suspended, and Appellant was placed on community supervision
for ten years. The jury also assessed a fine of $10,000.
In four issues on appeal, Appellant asserts (1) that the trial court committed
cumulative error in declaring Appellant’s justification defense irrelevant and
preventing Appellant from arguing self-defense and presenting evidence of
justification defenses throughout the case, (2) that the evidence is legally insufficient
to support the verdict, (3) that the trial court erred in omitting a jury charge
instruction on the lesser included offense of attempted tampering, and (4) that the
trial court erred in omitting from the court’s charge jury instructions as well as
application paragraphs on Appellant’s justification defenses. We first address
Appellant’s sufficiency-of-the-evidence issue, then Appellant’s cumulative-error
and justification issues, then Appellant’s issue related to the lesser included offense
of attempted tampering. We affirm.
Background Facts
Around 10:00 p.m. one night, Appellant began drinking, smoking marihuana,
and using cocaine with her boyfriend Juan Ramon Barron and one other friend.
Around 4:00 a.m., Appellant and Juan heard a knock at the back door. Juan grabbed
a knife before answering the door, as they were not expecting company. Two men
dressed in all black and wearing ski masks were at the door. Juan rushed toward
them, yelling, “You ain’t going to rob me . . . .” A fight ensued between Juan and
the two men. Appellant grabbed two knives and joined Juan in the fight. Juan
repeatedly stabbed one of the men—who was holding a gun—in the neck, face, and
“anywhere [he] could reach.” Juan took the gun from him, turned around to the
other man fighting with Appellant, and “shot the guy until [Juan] thought he was
dead.”
Both Juan and Appellant were still intoxicated during these events and began
to panic. They decided to drag the corpses to the side of the trailer, pull back the
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skirt from the bottom of the trailer, and stuff the bodies under the trailer. They placed
the skirt back on the trailer and cleaned the trailer and yard with bleach and water.
Juan dug up the areas of dirt that were covered in blood, placed the blood-soaked
dirt along with his bloody clothes in blankets, and hid them behind a shed. Juan
wrapped the gun in a paper towel and placed the gun, along with the shell casings,
in a pizza box on the kitchen table. After sobering up, Appellant and Juan decided
to “turn[] [themselves] in” and went to the police station to inform the police of what
had occurred. Appellant was then arrested and charged with tampering with physical
evidence. The jury convicted Appellant, and this appeal followed.1
Analysis
I. Sufficiency of the Evidence
In her second issue on appeal, Appellant contends that the evidence is
insufficient to prove beyond a reasonable doubt that Appellant actually completed
the act of tampering with evidence. We review a challenge to the sufficiency of the
evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307(1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State,
337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson
standard, we review all of the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all of the evidence
admitted at trial, including pieces of evidence that may have been improperly
1
In a separate trial, Juan Ramon Barron was convicted of murder arising from the same criminal
episode. We recently affirmed his murder conviction. See Barron v. State, No. 11-18-00324-CR, 2021
WL 747698 (Tex. App.—Eastland Feb. 26, 2021, pet. filed). Juan was also tried and convicted of tampering
with physical evidence. We are issuing an opinion in Cause No. 11-19-00128-CR that also affirms his
conviction for tampering with physical evidence.
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admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s
role as the sole judge of the witnesses’ credibility and the weight their testimony is
to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the
factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319; Clayton, 235 S.W.3d at 778.
It is not necessary that the evidence directly prove the defendant’s guilt;
circumstantial evidence is as probative as direct evidence in establishing a
defendant’s guilt, and circumstantial evidence can alone be sufficient to establish
guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not
point directly and independently to guilt if the cumulative force of all incriminating
circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.
A person commits the offense of tampering with evidence if, “knowing that
an offense has been committed, [the person] alters, destroys, or conceals any . . .
thing with intent to impair its . . . availability as evidence in any subsequent
investigation of or official proceeding related to the offense.” PENAL § 37.09(d)(1).
This statute requires proof of three elements: the defendant (1) knew an offense was
committed; (2) concealed, altered, or destroyed a thing; and (3) intended to impair
the availability of that thing as evidence in any subsequent investigation or official
proceeding related to the offense. Stahmann v. State, 602 S.W.3d 573, 576 (Tex.
Crim. App. 2020).
A person has knowledge of the commission of a murder where that person is
aware at the time of his alleged acts that someone intentionally or knowingly caused
the death of another individual. See PENAL § 19.02(b)(1) (West 2019); Hall v. State,
283 S.W.3d 137, 159 (Tex. App.—Austin 2009, pet. ref’d).
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Proof of actual concealment “requires a showing that the allegedly concealed
item was hidden, removed from sight or notice, or kept from discovery or
observation.” Stahmann, 602 S.W.3d at 581 (quoting Stahmann v. State, 548 S.W.3d
46, 57 (Tex. App.—Corpus Christi–Edinburg 2018), aff’d, 602 S.W.3d 573 (Tex.
Crim. App. 2020)); see also Rotenberry v. State, 245 S.W.3d 583, 586 (Tex. App.—
Fort Worth 2007, pet. ref’d) (noting in dicta that “[the defendant] concealed physical
evidence—[the victim’s] body—when [the defendant] hid the body in the septic
tank”).
A person acts with the intention to impair the availability of the evidence in a
subsequent investigation or proceeding related to the offense when it is the person’s
conscious objective or desire to impair the availability of the evidence. See PENAL
§ 6.03(a) (West 2011). The focus of this element is only whether Appellant intended
to impair the availability of the thing by concealing it; it is not an element of the
offense that concealment actually impair the evidence’s availability. See PENAL
§ 37.09(d)(1); Carnley v. State, 366 S.W.3d 830, 835 (Tex. App.—Fort Worth 2012,
pet. ref’d); Lewis v. State, 56 S.W.3d 617, 625 (Tex. App.—Texarkana 2001, no
pet.).
Here, the record demonstrates that Appellant was aware that Juan stabbed one
man repeatedly in the face and neck, grabbed the gun from him, and “shot the [other]
guy until [Juan] thought he was dead.” When Appellant subsequently talked to
police, she stated that she and Juan “had done something bad” because “someone
broke into their house and that [Appellant and Juan] had killed them.” Appellant
expressly admitted to police that they dragged the corpses by their feet to the side of
the trailer, removed the skirting from the trailer, “stuffed them under the house,”
placed the skirt back on the trailer, and proceeded to clean up the trailer and yard
with bleach and water. Juan also dug up the areas of dirt that were covered in blood,
placed the blood-soaked dirt and their bloody clothes in blankets, and hid the
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blankets along with drugs behind a shed. Appellant admitted to seeing Juan wrap
the gun in a paper towel and place the gun, along with the shell casings, in a pizza
box on the kitchen table.
Viewing the evidence in the light most favorable to the verdict, we conclude
that sufficient evidence exists to prove beyond a reasonable doubt that Appellant
was aware that a murder had been committed, that she actually concealed the
corpses, and that she did so intending to impair the availability of the corpses as
evidence in a subsequent investigation or proceeding related to the underlying
offense.
Appellant also asserts the law of justification and renunciation as defenses to
her conduct. For reasons discussed in the remainder of this opinion, neither the law
of justification nor renunciation applies to a charge of tampering with evidence under
these facts. We overrule Appellant’s second issue.
II. Justification Defense
In her first issue on appeal, Appellant contends that the trial court committed
cumulative error in declaring Appellant’s justification defenses irrelevant and in
preventing Appellant from presenting evidence of justification defenses throughout
the trial. The indictment read, in relevant part, that Appellant “did then and there,
knowing that an offense had been committed, to-wit: murder, intentionally or
knowingly alter or conceal human corpses . . . with intent to impair their availability
as evidence in any subsequent investigation or official proceeding related to the
offense.” Appellant asserts that, given the manner in which the State indicted
Appellant, murder was a required element in the State’s proof and, thus, justification
defenses were clearly relevant to the case. We disagree.
The doctrine of cumulative error provides that the cumulative effect of several
errors can, in the aggregate, constitute reversible error, even though each individual
error may be harmless. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim.
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App. 1999). However, the doctrine only applies if the alleged errors complained of
actually constitute error. Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App.
2009).
As we previously noted, one element of tampering with evidence under
subsection (d)(1) requires that the defendant know about the commission of an
offense. See PENAL § 37.09(d)(1); Stahmann, 602 S.W.3d at 576. Appellant’s
defensive posture throughout trial—as well as her posture on appeal—appears to be
that, because the indictment used the word “murder” rather than “offense” and
because Appellant believed Juan’s conduct of intentionally or knowingly killing the
two intruders was justified, Appellant did not know that a “murder” had been
committed.
At the outset, we note that justification defenses only apply to conduct for
which the defendant is currently being prosecuted. See PENAL § 9.02 (“It is a defense
to prosecution that the conduct in question is justified under this chapter.” (emphasis
added)). Here, although the indictment expressly defines the underlying offense as
murder, the State, in the case currently before this court, was not prosecuting
Appellant for murder; Appellant was only being prosecuted for the offense of
tampering with evidence. As a matter of law, self-defense does not change the nature
of the underlying conduct—murder. Rather, it is a defense to prosecution for the
underlying conduct of murder. Because Appellant’s justification defenses do not
apply to excuse the conduct in question—tampering with evidence, justification
defenses are wholly irrelevant in this case. See id.
Further, that the underlying offense may be justified is of no consequence in
determining whether a defendant had knowledge of its commission. Justification
defenses are based on the common law doctrine of confession and avoidance. See
Juarez v. State, 308 S.W.3d 398, 401–04 (Tex. Crim. App. 2010). A justification
defense only excuses culpability to what would otherwise constitute punishable
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conduct; it is not something that negates the elements of the underlying offense or
transforms the underlying conduct so that it no longer constitutes an offense. See
id.; Crayton v. State, No. 03-14-00570-CR, 2016 WL 6068250, at *9 (Tex. App.—
Austin Oct. 14, 2016, pet. ref’d) (mem. op., not designated for publication) (“Thus,
the jury’s decision to acquit appellant of murder based on self-defense does not mean
that the murder did not occur; it means only that appellant claimed, and the jury
decided, that the murder was justified.”); see also Stahmann, 548 S.W.3d at 63
(holding Section 37.09(d)(1) “requires a showing that the defendant have knowledge
that an ‘offense’ occurred[;] it does not require that the ‘offense’ be committed by
the defendant”).
In the instant case, the underlying offense was murder. Section 19.02(b)(1)
clearly states: “A person commits an offense if he . . . intentionally or knowingly
causes the death of an individual[.]” PENAL § 19.02(b)(1) (emphasis added).
Nowhere in Section 19.02 does it require the defendant’s conduct to be unjustified
in order to constitute the commission of the offense. See id. Had the legislature
intended for justification defenses to negate the commission of the offense of
murder, it could have easily stated: “A person commits an offense if he . . .
intentionally or knowingly causes the death of an individual, and the death was not
otherwise justified.” However, it did not include such language, “and it is not for us
to add or subtract to that which the Legislature has expressed.” Parfait v. State, 120
S.W.3d 348, 350 (Tex. Crim. App. 2003).
From the plain language of the statute, then, so long as Appellant knew that
she or someone else intentionally or knowingly caused the death of another
individual, then Appellant knew about the commission of a murder. See PENAL
§ 19.02(b)(1). Whether Appellant believed that she would not be subsequently
prosecuted and convicted for the offense of murder because such conduct was
justified is immaterial to a determination of whether Appellant knew a murder was
8
committed. See id. §§ 19.02(b)(1), 37.09(d)(1); Juarez, 308 S.W.3d at 401–04;
Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007); Crayton, 2016 WL
6068250, at *9–10; Hall v. State, 283 S.W.3d 137, 159 (Tex. App.—Austin 2009,
pet. ref’d). It is also immaterial to altering the evidence thereafter. For these reasons,
justification defenses are wholly irrelevant to the charged offense of tampering with
physical evidence. The introduction of this legal concept in conjunction with the
charge of tampering with physical evidence would unnecessarily risk confusing the
jury in determining the outcome of this case. We hold that the trial court did not
commit error—cumulative or otherwise—in preventing Appellant from asserting
justification defenses. We overrule Appellant’s first issue.
As to Appellant’s fourth issue, for the reasons stated above, the trial court did
not err in omitting from the court’s charge a jury instruction on justification defenses
and did not err in omitting a paragraph from the court’s charge on the application of
justification defenses to the facts of this case. See Shaw, 243 S.W.3d at 658;
Hutcheson v. State, 899 S.W.2d 39, 42 (Tex. App.—Amarillo 1995, pet. ref’d) (“[A
defendant] is not entitled to an instruction which is not raised by the evidence.”).
We overrule Appellant’s fourth issue.
III. Criminal Attempt and Renunciation
In her third issue, Appellant contends that she was entitled to an instruction
and application paragraph within the charge on the lesser included offense of
attempted tampering with evidence and that she was therefore, under the terms of
Section 15.04(a), entitled to raise the affirmative defense of renunciation.
Consequently, she also asserts that she was entitled to an instruction and application
paragraph within the charge on renunciation. This is a house of cards that stands or
falls on whether a jury could reasonably have found her conduct to constitute only
attempted tampering with evidence, not a completed commission of the crime of
tampering with evidence.
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During the charge conference, Appellant requested that language from
Sections 15.01 and 15.04 of the Penal Code be added to the charge. See PENAL
§ 15.01 (criminal attempt), § 15.04 (renunciation defense). The trial court denied
her request, stating that criminal attempt is not a lesser included offense and that,
“even if it was, attempt is not involved in -- is not in this case.” Appellant grasps
onto the last portion of Section 15.04(a) of the Penal Code, asserting that her conduct
of confessing to the police and revealing the location of the bodies before the police
began a search for the evidence—or even knew that a crime had been committed—
constitutes effective renunciation per the statute even “if abandonment was
insufficient to avoid commission of the offense, by taking further affirmative action
that prevented the commission.” Id. § 15.04(a) (emphasis added). We disagree;
renunciation is inapplicable under these facts, and Appellant was not entitled to an
instruction and application paragraph in the court’s charge on attempted tampering
with physical evidence or renunciation.
We apply a two-step analysis to determine whether a defendant is entitled to
the inclusion of a lesser included offense in the jury charge. Safian v. State, 543
S.W.3d 216, 219 (Tex. Crim. App. 2018); Rice v. State, 333 S.W.3d 140, 144 (Tex.
Crim. App. 2011). First, we must determine whether the lesser offense is actually a
lesser included offense of the offense charged as defined by Article 37.09 of the
Texas Code of Criminal Procedure. Rice, 333 S.W.3d at 144 (citing TEX. CODE
CRIM. PROC. ANN. art. 37.09 (West 2006)). Article 37.09(4) states: “An offense is a
lesser included offense if . . . it consists of an attempt to commit the offense charged
. . . .” CRIM. PROC. art. 37.09(4). Therefore, because Appellant was charged with
completed tampering with evidence, attempted tampering with evidence is properly
considered a lesser included offense under these facts.
The second and final step in the analysis is to determine whether the record
contains some evidence that would permit a rational jury to find that the defendant
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is guilty only of the lesser included offense. Safian, 543 S.W.3d at 220; Rice, 333
S.W.3d at 145. In other words, there must be more than a scintilla of evidence from
which a rational jury could acquit Appellant of tampering with evidence while
convicting her of the lesser included offense of attempted tampering with evidence.
See Safian, 543 S.W.3d at 220. In making this decision, this court evaluates the
evidence in the context of the entire record, but we do not consider whether the
evidence is credible, controverted, or in conflict with other evidence. See
Ritcherson v. State, 568 S.W.3d 667, 671 (Tex. Crim. App. 2018). Nevertheless, the
evidence cannot be speculative; it must consist of affirmative evidence that both
raises the lesser included offense and rebuts or negates an element of the greater
offense. Wortham v. State, 412 S.W.3d 552, 558 (Tex. Crim. App. 2013); see
Ransier v. State, 594 S.W.3d 1, 8–9 (Tex. App.—Houston [14th Dist.] 2019, pet.
granted).
In the instant case, it is important to note that the record is devoid of any
evidence that tends to negate any essential element of the object offense of tampering
with evidence—notwithstanding Appellant’s improper attempt to use justification
defenses to negate knowledge of the commission of an offense. Instead, Appellant
solely contends on appeal that a jury could only find her guilty of attempted
tampering because informing the police of the bodies and their location constituted
a valid renunciation. Accordingly, whether the second prong is satisfied depends
upon the applicability of a renunciation defense under these facts. We hold that
renunciation does not apply; it is inconsequential that Appellant subsequently
informed the police of the location of the bodies after they had been removed from
their original locations and hidden under the trailer.
By the plain terms of Section 15.04, the affirmative defense of renunciation
only applies to the offenses of criminal attempt, conspiracy, and solicitation. PENAL
§ 15.04. Section 15.04(a)–(d) lists Sections 15.01, 15.02, and 15.03 as conditioned
11
offenses in Section 15.04’s application. Id. These are inchoate offenses intended to
effect another underlying offense—in this case, the underlying offense at issue is
tampering with physical evidence. See id. A renunciation defense under Section
15.04(a) expressly limits its scope to criminal attempts. Id. § 15.04(a). “Criminal
attempt” requires an affirmative act that constitutes more than “mere preparation”
that “tends but fails to effect the commission of the offense intended.” Id. § 15.01(a).
“There is necessarily a gray area between conduct that is clearly no more than mere
preparation and conduct that constitutes the last proximate act prior to actual
commission of the offense.” Brooks v. State, 604 S.W.3d 239, 250 (Tex. App.—
Austin 2020, pet. granted) (quoting Come v. State, 82 S.W.3d 486, 489 (Tex. App.—
Austin 2002, no pet.)). Where in this gray area the conduct falls must be determined
on a case-by-case basis. See id.; see also Gibbons v. State, 634 S.W.2d 700, 706–
07 (Tex. Crim. App. 1982).
Under Section 15.04(a), an actor engaging in a criminal attempt may abandon
her criminal conduct at any time before performing the last proximate act tending to
effect the commission of the object offense. PENAL § 15.04(a); Thomas v. State, 708
S.W.2d 861, 863 (Tex. Crim. App. 1986). Even then, the defense is allowed where
the last proximate act has occurred but the criminal result can still be avoided by
taking further affirmative acts to prevent its commission, “as for example when the
fuse has been lit but can still be stamped out.” Thomas, 708 S.W.2d at 863 (quoting
former MODEL PENAL CODE § 5.01, at p. 360 (1985)). However, where the actor has
performed the last act necessary to constitute a complete commission of the object
offense, or where the actor has otherwise “put in motion forces that he is powerless
to stop,” there can be no renunciation of the criminal conduct. See id.
There must also be an affirmative showing that the abandonment was the
result of “voluntary repentance or change of heart.” In re J.F., Jr., 948 S.W.2d 807,
811 (Tex. App.—San Antonio 1997, no writ); see Thomas, 708 S.W.2d at 863–64.
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That the attempt was not successful or that abandonment of commission of the
offense occurred for some other motive is not a renunciation. See PENAL
§ 15.04(c)(1) (“Renunciation is not voluntary if it is motivated in whole or in part
. . . by circumstances not present or apparent at the inception of the actor’s course of
conduct that increase the probability of detection or apprehension or that make more
difficult the accomplishment of the objective.”). Accordingly, under
Section 15.04(a), only in the case of attempted tampering with evidence and only
where Appellant’s voluntary actions of abandonment did not ultimately result in the
commission of tampering with physical evidence may there exist a fact question on
the application of renunciation to be decided by the jury.
We first note that Appellant in this case was only charged with tampering with
evidence under Section 37.09(d)(1), not with attempted tampering with evidence
under Section 15.01. See PENAL §§ 15.01, 37.09(d)(1). The rationality behind
Appellant’s position is cyclical; Appellant cannot assert that her conduct only
constituted attempted tampering because she renunciated—as she contends in this
case—while simultaneously contending that the law of renunciation applies
precisely because her conduct only constituted attempted tampering. Because
Appellant was not charged with an offense under Sections 15.01, 15.02, or 15.03,
renunciation is inapplicable, and Appellant cannot assert the defense to support an
instruction on attempted tampering. See PENAL §§ 15.01–.03; Wesbrook v. State, 29
S.W.3d 103, 121–22 (Tex. Crim. App. 2000) (renunciation instruction under
Section 15.04(b) not warranted where defendant was not prosecuted for conspiracy
to commit or solicitation of murder); see also Stout v. State, No. 05-05-01064-CR,
2006 WL 540338, at *1 (Tex. App.—Dallas 2006, no pet.) (not designated for
publication) (“Unless a defendant is charged under section 15.01 . . . , 15.02 . . . , or
15.03 . . . of the penal code, a renunciation defense does not apply.”).
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Moreover, Appellant may not use renunciation as a defense because the object
offense of tampering with evidence had already been completed. See PENAL
§§ 15.01, 15.04, 37.09(d)(1); Thomas, 708 S.W.2d at 863; In re J.F., Jr., 948 S.W.2d
at 811 (“In the present case, appellant was not charged with an attempted offense.
The offense appellant claims to have abandoned actually occurred. Therefore,
appellant was not entitled to avail himself of the defense of renunciation.”). By
completing the object offense, Appellant necessarily failed to “tak[e] further
affirmative action that prevented the commission [of the offense].” PENAL
§ 15.04(a). Additionally, this is not a case in which “abandonment was insufficient
to avoid commission of the offense.” Id. To avoid committing the offense,
Appellant could have abandoned her conduct at any time before hiding the bodies
under the trailer. Of course, it is axiomatic to say that abandonment is insufficient
to avoid the commission of the offense once the offense has been committed, but the
statute cannot reasonably be interpreted to encompass such a scenario. See Thomas,
708 S.W.2d at 863 (citing former MODEL PENAL CODE § 5.01, at p. 360 (1985)).
Under these facts, Appellant’s conduct was not a renunciation: it was a confession.
See id.; see also McCray v. United States, 276 F.2d 705, 707 (5th Cir. 1960) (“When
. . . the offenses charged are substantive offenses and the defendants admit that they
committed them, there is no room or place for purging guilt by abandonment of the
criminal act and renunciation of the criminal intent. There is only place and time for
a full confession of guilt . . . .”). Therefore, renunciation is inapplicable and there
must exist some evidence warranting an instruction on the lesser included offense of
attempted tampering independent of a defense on renunciation.
Without the ability to rely on renunciation as a defense, Appellant’s admitted
acts of moving and placing bodies under the skirt of the trailer greatly exceed mere
preparation; indeed, they are affirmative acts of commission that exceed the scope
of criminal attempt entirely because they actually “effect[ed] the commission of the
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offense intended.” See PENAL § 15.01(a). The record contains no evidence from
which a rational jury could find that, if Appellant was guilty, she was guilty of only
attempted tampering with evidence. See Rice, 333 S.W.3d at 145; Hackbarth v.
State, 617 S.W.2d 944, 946 (Tex. Crim. App. 1981). Therefore, we hold that the
second prong of the test set forth above was not met and that the trial court did not
err in omitting an instruction in the court’s charge on the lesser included offense of
attempted tampering with evidence.
Accordingly, the trial court did not err in refusing to submit an instruction and
application paragraph in the court’s charge on the lesser included offense of
attempted tampering or on the affirmative defense of renunciation. We overrule
Appellant’s third issue.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
April 15, 2021
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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