Thornton v. State, PD–0669–13.

• Citation: 425 S.W.3d 289
• Decision Date: 02 April 2014
• Docket Number: No. PD–0669–13.,PD–0669–13.
• Parties: Gregory THORNTON, Appellant v. The STATE of Texas.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

425 S.W.3d 289

Gregory THORNTON, Appellant

v.The STATE of Texas.

No. PD–0669–13.

Court of Criminal Appeals of Texas.

April 2, 2014.

Joel Cook, Law Offices of Wm. Everett Seymore, Lubbock, TX, for Appellant.

Lisa McMinn, State Prosecuting Attorney, Austin, TX, for the State.

OPINION

PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and WOMACK, KEASLER, and HERVEY, JJ., joined.

After a jury trial, the appellant was convicted of the third-degree felony offenseof tampering with evidence, on a theory of concealment, ¹ for reaching into his pocket, pulling out a crack pipe, and dropping it to the ground in the presence of two police officers.² On appeal, the Seventh Court of Appeals deemed the evidence to be insufficient to support a conviction for tampering with evidence by concealment because, with respect to the element of concealment, the evidence showed that “at least one of the officers on the scene ... was aware of the presence of the item alleged to have been concealed” at all times.³ Accordingly, it reversed the judgment of the trial court and ordered that the defendant be acquitted.⁴

After this Court, on initial discretionary review, remanded the cause for the court of appeals to consider reforming the judgment to reflect a conviction for attempted tampering with evidence,⁵ the court of appeals, in a published opinion, explicitly declined to do so.⁶ We granted the State's petition for discretionary review to address three issues relating to the court of appeals's opinion on remand: 1) Whether the court of appeals erred to hold that the State failed to “preserve” the issue of reformation; 2) Whether the court of appeals erred to rule that reformation may be used only to reform the “aggravating elements” of an offense; and 3) Whether the court of appeals erred to conclude that there is insufficient evidence to support a conviction for attempted tampering with evidence. We will reverse.

I. FACTS AND PROCEDURAL POSTURE

On April 11, 2008, Lubbock Police Officers Meil and Roberts, dressed in plain clothes and driving an unmarked car, were assigned to burglary patrol in a residential neighborhood. At approximately 7:30 a.m., as “[t]he sun was coming up,” Meil and Roberts spotted the appellant and a female companion walking in the middle of a street that was lined on either side by an unobstructed sidewalk. Seeing this, Roberts drove toward the curb in order to cite the appellant and his companion for violating the “Use of Sidewalk” provision of the Texas Transportation Code.⁷ As the officers' vehicle was pulling over, the appellant and his companion stepped from the street onto the sidewalk and ultimately continued to walk with their backs to the officers' car.

By the time Meil and Roberts exited their vehicle, the appellant and his companion were approximately ten to fifteen feet away. After stepping onto the sidewalk, the officers ordered the appellant and his companion to stop. As the appellant turned around, Meil and Roberts—now twenty feet from the appellant—identified themselves as police officers and showed the appellant their badges and sidearms. Apparently realizing that the two men in front of him were police officers, the appellant reached into his pocket and dropped a small object that broke when it hit the sidewalk, producing the distinctive sound of shattering glass. After dropping the object, the appellant approached the officers. The broken pieces of the object remained in the middle of the sidewalk where the appellant had dropped it.

Because of his position on the sidewalk, Meil did not actually see the appellant drop the object. Roberts, on the other hand, never lost sight of the object from the moment the appellant removed it from his pocket. Roberts, having his own suspicions as to the nature of the object, directed Meil to inspect it. Based on its shape, contents, and the presence of burn marks, Meil was able to confirm that the object was, in fact, a crack pipe. The officers then arrested the appellant for possession of drug paraphernalia,⁸ and he was ultimately charged by indictment with tampering with evidence by concealment.

A. At Trial

The appellant exercised his right to a jury trial on guilt-innocence, but elected to have the trial court assess punishment. The State's only witnesses at the guilt phase were Meil and Roberts. During the course of direct examination, Roberts confirmed that the appellant had “stealthfully reached in [his pocket], pulled [the pipe] out palming it, and then dropped it” as he walked toward the officers. While cross-examining Roberts, defense counsel directed him to re-enact the appellant's precise movements when he reached into his pocket and dropped the pipe. When both parties rested and closed, the appellant, seizing on the fact that Roberts testified that he had never lost sight of the crack pipe, asked the trial court to instruct the jury as to the lesser-included offense of attempted tampering with evidence.⁹ The State made no argument opposing the appellant's proposed charge, but the trial court nevertheless rejected it. After deliberation, the jury returned a verdict of guilty on the charge of tampering with evidence by concealment, and the appellant was sentenced by the trial court to a forty-five year term of confinement.¹⁰

B. On Appeal

On his initial appeal to the court of appeals, the appellant argued that the evidence upon which the jury relied to convict him was legally insufficient to establish the element of concealment. The State responded, first, that the crack pipe was concealed from Roberts, however momentarily, when the appellant “palmed” the pipe as he was removing it from his pocket; and second, that even if Roberts had a clear view of the crack pipe at all times, Meil did not—and that on the basis of the appellant's successful concealment of the evidence from the view of Meil, the appellant's conviction was sufficiently supported by the evidence and should be affirmed. The court of appeals disagreed with the State on both grounds. As to the first ground, the court of appeals simply disputed the State's claim that the pipe was out of Roberts's view, even for a moment; ¹¹ as to the second, the court reasoned that, since “at least one of the officers on the scene ... was aware of the presence of the item alleged to have been concealed,” case law suggests that “[one] officer's awareness of evidence is imputed to other officers.” ¹² Accordingly, it reversed the judgment of conviction and rendered a judgment of acquittal as to the tampering charge.¹³

During the pendency of that appeal, however, and before the court of appeals issued its opinion, we issued our own opinion in Bowen v. State.¹⁴ In Bowen, we held that a court of appeals, upon finding the evidence supporting a conviction to be legally insufficient, is not necessarily limited to ordering an acquittal, but may instead reform the judgment to reflect a verdict of guilty on a lesser-included offense—even when no lesser-included instruction was given at trial. In light of this holding, in its initial petition for discretionary review, the State asked this Court to vacate the court of appeals's judgment in this case and remand the cause for “that court to consider the effect of Bowen, if any, on its reasoning and analysis [.]” ¹⁵ We granted the State's request.¹⁶

On remand, the court of appeals gave three reasons why it considered reformation of the judgment to reflect a conviction for the lesser offense to be inappropriate for this case. First, the court of appeals held that “the State waived any error with respect to the trial court's failure to submit a lesser-included offense” when it “stood idly by as the trial court denied Appellant's request for one.” ¹⁷ Second, and “[n]otwithstanding the issue of waiver,” the court of appeals read our opinion in Bowen to stand for the proposition that “an appellate court should reform the conviction to the lesser-included offense in [only] those situations where the State has failed to prove an ‘aggravating element’ of the charged offense, but has met its burden of proof as to the ‘essential elements' of the lesser included offense.” ¹⁸ On the basis of this characterization, the court of appeals deemed Bowen “not relevant to [its] decision to acquit rather than reform the judgment,” since “[c]oncealment is not an ‘aggravating element’ of the offense of tampering with evidence, it is the very sine qu[ a ] non of that offense.” ¹⁹ Third, according to the court of appeals, “even if Bowen were applicable to this case, the evidence presented would not be legally sufficient to support a conviction of attempted tampering with evidence.” ²⁰ The court of appeals reasoned that a contrary conclusion would require “total speculation as to whether or not Appellant had the specific intent to ‘conceal’ the evidence once he removed it from his pocket, or whether he merely intended to dispossess himself of it.” ²¹

In its present petition for discretionary review, the State has asked us to review each of the court of appeals's justifications for refusing to reform the judgment to reflect a conviction for attempted tampering. We will address these justifications in turn.

II. ANALYSIS

A. Preservation of Error?

After determining that the evidence of concealment was legally insufficient, the court of appeals began its consideration of whether to reform the appellant's judgment by positing that “the State waived any error with respect to the trial court's failure to submit a lesser-included offense by failing to either timely request such a submission or object to the omission of the issue in the jury charge.” ²² We note, as a preliminary matter, that the State has never objected to, nor complained of, the trial court's failure to submit a lesser-included offense instruction. Rather, the State has complained (and continues to complain) of the court of appeals's failure to reform the judgment to reflect a conviction for the lesser...