Stahmann v. State

• Decision Date: 04 January 2018
• Docket Number: NUMBER 13-16-00400-CR
• Citation: 548 S.W.3d 46
• Parties: Karl Dean STAHMANN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

548 S.W.3d 46

Karl Dean STAHMANN, Appellant,

v.The STATE of Texas, Appellee.

NUMBER 13-16-00400-CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed January 4, 2018

Rehearing and Rehearing En Banc Denied May 4, 2018

Christopher P. Morgan, Attorney at Law, 3009 N. Interstate Hwy 35, Austin, TX 78722, for Appellant.

Jennifer A. Tharp, Comal County Criminal District Attorney, 150 North Seguin, Suite 370, Nicholas Robinson, Comal County DA's Office, 150 N. Seguin Ave., Suite 307, New Braunfels, TX 78130, for Appellee.

Before Justices Rodriguez, Contreras, and Benavides

Opinion by Justice Contreras

Appellant Karl Dean Stahmann was convicted of tampering with physical evidence, a third-degree felony. See TEX. PENAL CODE ANN. § 37.09 (West, Westlaw through 2017 1st C.S.). He was sentenced to ten years' imprisonment, with the sentence suspended and community supervision imposed for ten years. Stahmann raises seventeen issues on appeal, arguing that: (1) the evidence was insufficient to support the conviction; (2) the trial court erred in denying his motion to quash part of the indictment; (3) the trial court erred in denying certain jury charge instructions; (4) his conviction was barred by the doctrine of collateral estoppel; and (5) the prosecutor made improper arguments.

We find insufficient evidence to support the tampering conviction, but sufficient evidence to support a conviction for attempted tampering with physical evidence. Accordingly, we reverse and remand.¹

I. BACKGROUND

This case arises from a two-vehicle collision on State Highway 46 outside of New Braunfels. Norberto Gonzalez testified that he was driving his SUV with his wife and son as passengers, on July 1, 2012 at around 4:30 p.m., when he saw a van approaching from the opposite direction. Gonzalez testified that he saw the van "starting to turn toward us, and I'm thinking maybe he sees me; he'll stop. But he kept going, and we hit each other." Gonzalez stated the van did not have its turn signal activated. He testified he was driving around fifty miles per hour at the time, that it had been raining earlier in the day, and that the van was slowing down as it started to turn. After the collision, Gonzalez remembered the SUV spinning around and the air bag deploying. He saw blood on the windshield of the van and on the face of its driver. On cross-examination, Gonzalez stated that there was a housing subdivision off to the side of the road, into which it appeared the van was turning. He conceded that he had not told police that the van did not have its turn signal activated.

Two bystanders, Ronnie Ballard and Michael Freeman, arrived at the scene and called 911. Ballard testified that he saw two people inside the van. When Ballard approached the van, the driver—whom Ballard identified as Stahmann—exited. Stahmann was bleeding from his forehead, was "very upset" and "agitated," and "was complaining he couldn't see out of one eye." Ballard testified that he was about ten or fifteen feet away from Stahmann when he observed the following:

The driver walked towards the fence that was—there was a gated fence right near the accident scene. At that time, I saw him throw something over the—over the fence into—near a tree into some small, you know, kind of shrubbery at the bottom of that tree. It looked like—looked to be, like, a prescription medicine bottle.... [A]s I walked over towards to see—you know, kind of get a better look to see, you know, where the bottle had went, he started asking me what I was doing over there, what was I looking for, why am I over there. You know, he was angry.... [H]e wanted us to call his dad. He kept asking to leave and go—he said, I just live right up—my dad lives right up the street. I need to go see him. I need to leave here. And we just kept asking [sic] him, No. You need to stay until somebody arrives on the scene.

Ballard also stated that, when he and Freeman came upon the scene, he saw opened beer cans inside the van, and he noticed that a couple of the cans had fallen out of the van. He stated that Stahmann seemed "disheveled from the accident" but otherwise did not appear confused or disoriented.

Freeman testified that Stahmann did appear confused and disoriented and was "bleeding real bad" from his head. Freeman tried calling Stahmann’s father, at Stahmann’s request, but there was no answer. Freeman corroborated Ballard’s account that Stahmann threw what appeared to be a prescription medication bottle over the wire fence next to the accident scene. Freeman stated that, as he and Ballard were walking away from where the pill bottle was, Stahmann "got real nervous and started questioning us, why we were over there and what were we looking for."

Terry Aikman, a retired paramedic, was passing by the accident scene and stopped to give assistance. He testified that Stahmann had a large gash over his left eye and was bleeding profusely. According to Aikman, Stahmann did not appear intoxicated but seemed to be "unaware of his situation" due to shock. He stated that, pursuant to his training, he asked Stahmann four questions to test whether he was "alert and oriented"—"the president, the day, the month, what year"—and that Stahmann answered all of the questions correctly, indicating that "he’s aware of his surroundings" even though he was in pain.

According to Ballard and Freeman, when police arrived, they advised officers that they saw Stahmann throw something over the fence, and they pointed out where it was. Police were able to retrieve the item that was thrown over the fence—an ordinary orange prescription medication bottle with a label and a white cap. The officer who retrieved the bottle stated that it was sitting on top of the grass on the other side of the fence. The bottle contained four intact white tablets along with several broken ones and some powder. The label on the bottle stated the name "James Castaneda" and listed its contents as "promethazine

tab 25 mg." A Department of Public Safety chemist tested the pills and determined that they contained promethazine, a prescription cough suppressant.

The chemist testified that promethazine

is classified as a "dangerous drug" and that it is illegal to possess it without a prescription.

The jury charge included instructions on the offenses of tampering with physical evidence and attempted tampering with physical evidence. The jury found Stahmann guilty of the former offense and, pursuant to the charge instructions, did not answer the question regarding the latter offense. This appeal followed.

II. DISCUSSION

A. Evidentiary Sufficiency

By his first issue on appeal, Stahmann argues that there was insufficient evidence to support his conviction for tampering with physical evidence. By his second issue, he contends that the trial court erred by denying the motion for instructed verdict he filed at the close of evidence. We address the issues together. See McDuff v. State , 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (noting that "a complaint about overruling a motion for directed/instructed verdict is in actuality an attack upon the sufficiency of evidence to sustain the conviction").

1. Standard of Review and Applicable Law

In reviewing sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Griffin v. State , 491 S.W.3d 771, 774 (Tex. Crim. App. 2016) ; see Brooks v. State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). We resolve any evidentiary inconsistencies in favor of the judgment, keeping in mind that the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give their testimony. Brooks , 323 S.W.3d at 899 ; see TEX. CODE CRIM. PROC. ANN. art. 38.04 (West, Westlaw through 2017 1st C.S.) ("The jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony."). We determine, based upon the cumulative force of all of the evidence, whether the necessary inferences made by the jury are reasonable. Griffin , 491 S.W.3d at 774.

Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State , 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) ; Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried." Villarreal , 286 S.W.3d at 327 ; Malik , 953 S.W.2d at 240.

Here, a hypothetically correct charge authorized by the indictment would instruct the jury to find Stahmann guilty of tampering with physical evidence if: (1) knowing that an investigation or official proceeding was pending or in progress, (2) he altered, destroyed, or concealed a bottle of pills (3) with intent to impair its verity or availability as evidence in the investigation or official proceeding; or (1) knowing that an offense was committed, (2) he altered, destroyed, or concealed a bottle of pills (3) with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense. See TEX. PENAL CODE ANN. § 37.09(a)(1), (d)(1) ; see also Kitchens v. State , 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) ("It is appropriate where the alternate theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted."); Anderson v. State , 717 S.W.2d 622, 631 (Tex. Crim. App. 1986) (no...