Rabb v. State, No. PD–1643–12.

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 434 S.W.3d 613
• Docket Number: No. PD–1643–12.
• Parties: Richard Lee RABB, Appellant v. The STATE of Texas.
• Decision Date: 25 June 2014

434 S.W.3d 613

Richard Lee RABB, Appellant
v.
The STATE of Texas.

No. PD–1643–12.

Court of Criminal Appeals of Texas.

June 25, 2014.

[434 S.W.3d 614]

Gregory Gray, Rockwall, for Appellant.

Craig Stoddart, Assistant District Attorney, Rockwall, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION
MEYERS, J., delivered the opinion of the Court, in which PRICE, WOMACK, JOHNSON, KEASLER, and HERVEY, JJ., joined.

Appellant, Richard Lee Rabb, was convicted of tampering with physical evidence under Section 37.09(a)(1) of the Texas Penal Code and sentenced to six years of confinement. The Seventh Court of Appeals reversed the trial court's judgment of conviction and rendered a judgment of acquittal. Rabb v. State, 387 S.W.3d 67, 73 (Tex.App.-Amarillo 2012). The State filed a petition for discretionary review asking that we consider (1) whether the court of appeals erred in failing to find overlap in the terms “conceals” and “destroys,” (2) whether the court of appeals erred in not permitting the fact finder to infer the evidence was destroyed, and (3) whether the court of appeals was required to reform the judgment to a conviction on a lesser-included offense rather than acquit. We granted the State's petition in order to consider these issues. We now hold that while there is some overlap between the terms “conceals” and “destroys” for purposes of Section 37.09(a), no rational trier of fact could have found that Appellant destroyed the evidence in this case. However, because the court of appeals did not have the benefit of our recent opinion in Thornton v. State, 425 S.W.3d 289 (Tex.Crim.App.2014), we remand the case for the court of appeals to consider whether reformation of the judgment is required.

FACTS

Appellant was shopping in a Wal-mart store in Rockwall with his step-brother, James Reynolds, and their mother. Appellant and Reynolds were both in the electronics section of the store, but some distance from each other, when a Wal-mart asset-protection coordinator observed Reynolds select items from the shelves in a suspicious manner. The employee then watched as Reynolds walked to another section of the store, unwrapped the merchandise, and hid it in his clothing. While observing this, the asset protection coordinator attempted to contact additional employees for backup. He had difficulty getting

[434 S.W.3d 615]

a response, so he called the police and requested that an officer come to the store. Once Reynolds exited the check-out area without paying for the items in his clothing, he was detained by store employees. When questioned about who else was with him, Reynolds described his step-brother, Appellant.

In the meantime, Appellant had continued shopping, unaware that Reynolds had been detained for shoplifting. After Appellant paid for his items and was exiting the store, a police officer who had responded to the call to the store approached him. The events that followed were captured by the store's security camera and shown to the court while witnesses narrated. The officer explained to Appellant that Reynolds was in custody for stealing merchandise and asked Appellant if he had taken anything from the store without paying. When Appellant responded that he had not, the officer asked for consent to search him. Appellant consented by immediately turning around and placing his hands in the air. The officer was conducting a pat-down search and removing items from Appellant's pockets when one of the employees standing nearby noticed the corner of a plastic baggie in Appellant's hand. The employee notified the officer. When the officer went to retrieve the baggie, Appellant put the baggie in his mouth.

The officer demanded that Appellant spit out the baggie, but Appellant refused. The officer then attempted to restrain Appellant to keep him from swallowing the baggie. Appellant resisted, and a second officer who had been summoned to the store tasered Appellant multiple times, eventually rendering Appellant submissive and unconscious. At some point during the altercation, Appellant swallowed the baggie and its contents.

Although Appellant regained consciousness quickly, an ambulance was called to the scene. The medical report shows that Appellant told the medic that the baggie “contained pills that were not prescribed to him, but would not state exactly what they were. He originally said pain pills, but later said they were OTC meds and it was about four of them.” No one made any attempt to retrieve the items that Appellant swallowed.

The State charged Appellant with violating Section 37.09 of the Penal Code by “knowing that an investigation was in progress, ... intentionally or knowingly destroy[ing] a plastic baggie with intent to impair its availability as evidence in the investigation.” The trial court convicted Appellant and sentenced him to six years of confinement.

COURT OF APPEALS

Appellant appealed, arguing that the evidence was insufficient to establish that he destroyed the baggie or that he knew an investigation was in progress. Rabb, 387 S.W.3d at 70. The court first considered the evidence on Appellant's destruction of the baggie and addressed the definitions of “conceal” and “destroy.” It reasoned that, contrary to the State's suggestion, the two terms should not be applied in a way that “maximizes their overlap” and produces a result where “every item concealed [would] also be considered destroyed.” Id. at 72. While the State contended that the Appellant destroyed the baggie because his actions caused its “complete ruination,” the court said that the State's definition was equating the two words simply because the item had not been recovered. Id. The court of appeals concluded that, because the evidence showed only the baggie's location and nothing about the condition of the baggie or pills, the acts of Appellant constituted concealment rather than destruction. Id. Based on this determination, the court of appeals reversed the trial

[434 S.W.3d 616]

court, holding that no rational trier of fact could have found that Appellant destroyed the baggie within the meaning of the law.¹Id. at 73.

STANDARD OF REVIEW

In evaluating the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the defendant guilty of all of the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003). When the State pleads a specific element of a penal offense that has statutory alternatives for that element, the sufficiency of the evidence will be measured by the element that was actually pleaded, and not any alternative statutory elements. Cada v. State, 334 S.W.3d 766, 774 (Tex.Crim.App.2011) (citing Planter v. State, 9 S.W.3d 156, 159 (Tex.Crim.App.1999); Fuller v. State, 73 S.W.3d 250, 255–56 (Tex.Crim.App.2002) (Keller, P.J., concurring); Macias v. State, 136 S.W.3d 702, 705–06 (Tex.App.-Texarkana 2004, no pet.)). The due-process guarantee requires proof beyond a reasonable doubt to support every element of the offense alleged and demands that we reverse and order a judgment of acquittal if a rational trier of fact would entertain a reasonable doubt as to the defendant's guilt. Swearingen, 101 S.W.3d at 95.

DESTRUCTION OF EVIDENCE

Section 37.09(a)(1) of the Texas Penal Code defines the offense of tampering with physical evidence with three elements: (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. Williams v. State, 270 S.W.3d 140, 142 (Tex.Crim.App.2008). As noted, Appellant's indictment alleged only that he destroyed the evidence and did not allege either of the statutory alternatives.

In the present case, the court of appeals looked to our opinion in Williams for the definition of “destroy” and for guidance in analyzing Appellant's actions. In Williams, we held that a glass crack pipe that had been broken into pieces when stepped on was destroyed for the purposes of this statute. Id. at 146. We asserted that, because the Legislature chose to use the three different words in the statute, “ ‘destroys' must have an effect distinct from ‘alters' and ‘conceals.’ ” Id. We then determined that evidence is “destroyed” when “ruined or rendered useless,” rather than when its evidentiary value is lost or diminished. Id. at 145–46.

The court of appeals used this discussion from Williams in deciding that “destroy” and “conceal” should not so closely overlap as to be interchangeable in this case. The State, however, mischaracterizes the opinion as disallowing any overlap in the definitions of “destroy” and “conceal.” In reality, the court of appeals explicitly acknowledged that “there is the possibility of overlap in the application of the three means of tampering.” Rabb, 387 S.W.3d at 72. The court of appeals simply declined to extend the definition of “destroy” that we put forth in Williams to the situation in this case in which Appellant's “action so clearly constitut[ed] a concealment.” Id.

[434 S.W.3d 617]

While the words chosen by the Legislature in defining this offense each have a distinct purpose, this does not preclude overlap among those meanings. See, e.g., Clinton v. State, 354 S.W.3d 795, 801 (Tex.Crim.App.2011) (concluding that “uses” and “presents” have some overlap in the debit-card-abuse statute); Taylor v. State, 117 S.W.3d 848, 851 (Tex.Crim.App.2003) (stating there is nothing “unusual” in overlap between the terms “manager” and “employee”); Patterson v. State, 769 S.W.2d 938, 941 (Tex.Crim.App.1989) (holding that there is overlap in the terms “use” and “exhibit” in the deadly-weapon statute). Therefore, while “conceal,” “destroy,” and...