NUMBER 13-14-00316-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
MARY ZUNIGA, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Rodriguez
By one issue, appellant, the State of Texas, challenges the trial court’s order
quashing count one of the indictment against appellee Mary Zuniga. We reverse and
remand.
I. BACKGROUND
Zuniga was pulled over by a police officer for allegedly running a stop sign in front
of her home. The officer placed Zuniga under arrest when he observed a bottle of
controlled medication in Zuniga’s vehicle for which she was not able to show a valid
prescription. 1 At the hearing on Zuniga’s motion to quash the indictment, the State
provided the following recitation of events:
They handcuffed her and put her in the back of the car, this is all on video.
As she’s sitting in the back of the police car with her hands handcuffed
behind her back, you see her on the video moving her hands towards her
side, reaching into her crotch area, pulling something out with her hands
cupped because apparently she knows an officer is watching her. Moves
her hands towards her mouth and moves her head down, like she
swallowed something.
At the hearing, the State also stipulated that an officer would testify at trial that he saw
Zuniga swallow a white substance in a baggy. Zuniga was taken to the hospital where
medical professionals pumped Zuniga’s stomach and performed an x-ray. No illegal
substance or baggie was found. The State neither tested the results of Zuniga’s stomach
purge for an illegal substance nor requested any testing of her blood.
Zuniga was indicted on two counts: tampering with physical evidence and assault
on a public servant. The first count (the only count at issue in this appeal) alleged:
Mary Zuniga, defendant, on or about, December 29, 2013, in Nueces
County, Texas, did then and there, while knowing that an investigation was
in progress, to wit: A DRUG INVESTIGATION, intentionally and knowingly
ALTER, OR DESTROY, OR CONCEAL, an unknown substance with intent
to impair its verity or availability as evidence in any subsequent investigation
or official proceeding related to the offense.
The phrase “an unknown substance,” was originally omitted. Zuniga moved to
quash the indictment on the grounds that its allegations were insufficient. It was during
the hearing on Zuniga’s first motion to quash the indictment that the State made the
1 Zuniga later provided a valid prescription—the medicine was for her child.
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handwritten notation—unknown substance—on the indictment. In response, Zuniga
challenged the sufficiency of the modified indictment, complaining that “an unknown
substance” was not sufficient to charge Zuniga with tampering with physical evidence
pursuant to the code of criminal procedure. The trial court agreed and granted Zuniga’s
motion to quash count one of the indictment by written order. This appeal followed.
II. IS AN “UNKNOWN SUBSTANCE” A “THING”
By a single issue, the State contends that the “unknown substance” language in
the indictment was sufficient to charge Zuniga with the crime of tampering with physical
evidence pursuant to section 37.09 of the Texas Penal Code. See TEX. PENAL CODE
ANN. § 37.09 (West, Westlaw through Ch. 49, 2015 R.S.). Zuniga responds that the
indictment was facially defective because it did not include all elements of the offense
that the State must prove.
A. Applicable Law
The sufficiency of a charging instrument presents a question of law that we review
de novo. Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010). The right to
notice of pending criminal charges is set forth in both the United States and Texas
constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see State v. Moff, 154
S.W.3d 599, 601 (Tex. Crim. App. 2004). In order to satisfy the defendant’s
constitutional right to notice, an indictment must be specific enough to inform him or her
of the nature of the accusation such that the accused can prepare a defense. TEX. CODE
CRIM. PROC. ANN. art. 21.11 (West, Westlaw through Ch. 49, 2015 R.S.); Moff, 154 S.W.3d
at 601. The indictment should state everything that is necessary to be proven. TEX.
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CODE CRIM. PROC. ANN. art. 21.03.
Generally, when an indictment tracks the language of a penal statute, it will satisfy
constitutional and statutory requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex.
Crim. App. 1998) (noting that the State need not allege facts that are merely evidentiary
in nature). In the context of a motion to quash, we look to whether the indictment facially
alleges the elements of the offense; we do not look at the evidence supporting the
indictment. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (opinion
on reh’g); State v. Clarke, 880 S.W.2d 854, 854–55 (Tex. App.—Corpus Christi 1994, pet.
ref’d).
Section 37.09(a)(1) of the Texas Penal Code defines the offense of tampering with
physical evidence as: (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. TEX. PENAL CODE. ANN. § 37.09(a)(1); Rabb v. State, 434 S.W.3d
613, 616 (Tex. Crim. App. 2014) (citing Williams v. State, 270 S.W.3d 140, 142 (Tex.
Crim. App. 2008)). The statute specifies that the putative evidence must be a record,
document or thing, though it does not require that the “thing” be, in and of itself, of a
criminal nature. See TEX. PENAL CODE ANN. § 37.09(a)(1); Williams, 270 S.W.3d at 144.
B. Discussion
We are asked to determine whether an “unknown substance” can be a “thing”
under section 37.09 of the penal code such that an indictment alleging the same complies
with the constitutional notice requirements and the Texas Code of Criminal Procedure.
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See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. arts. 21.03.,
21.11 (West, Westlaw through Ch. 49, 2015 R.S.); see also Rosenbaum, 910 S.W.2d at
948.
Though the prosecutor stated at the hearing on the motion to quash that the
arresting officer would testify that he observed Zuniga swallow a baggie containing a
white substance, the indictment in this case did not specifically identify what the State
alleges Zuniga destroyed: it merely states that the item allegedly destroyed was an
“unknown substance.” However, because Zuniga challenged the sufficiency of the
charging document itself, the trial court could not consider any evidence and was limited
to the face of the indictment itself in making its determination to quash. See Rosenbaum,
910 S.W.2d at 948.
In the present case, the State’s indictment did not specifically identify the alleged
physical evidence destroyed; however the statute does not require a high degree of
specificity in identifying the destroyed evidence. See, e.g., Barrow v. State, 241 S.W.3d
919, 923–24 (Tex. App.—Eastland 2007, pet. ref’d) (affirming a conviction for tampering
when Barrow swallowed a “rock-like” substance believed to be crack cocaine); see also
Perry v. State, No. 06-08-00039-CR; 2009 WL 1138812, at *6 (Tex. App.—Texarkana
Apr. 29, 2009, pet. ref’d) (mem. op., not designated for publication) (holding that the
evidence was legally sufficient to support a tampering conviction even though the State
did not prove that the destroyed evidence was Seroquel, as alleged in the indictment,
because the State did put forth evidence that something of evidentiary value was
destroyed). Instead, a facially complete indictment in this case must allege every fact
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necessary to convict Zuniga of tampering with physical evidence pursuant to section
37.09. See TEX. CODE. CRIM. PROC. ANN. art. 21.03; Rosenbaum, 910 S.W.2d at 948.
Based on the Texas Court of Criminal Appeals’ holdings in Williams and Barrow, we
determine the State is not required to allege, as an element of the offense, the specific
identity of the destroyed evidence. See Williams, 241 S.W.3d at 923–24; Barrow, 240
S.W.3d at 142–44.
The statute focuses not on what was destroyed, but instead focuses on whether
the accused acted with the intent of impairing its use as evidence. See TEX. PENAL CODE
ANN. § 37.09(a)(1); Barrow, 240 S.W.2d at 142–44. Though identity of the putative
evidence destroyed will be relevant at trial, it will be relevant not because it is an element
of the offense, but because it is evidence of intent. As such, the identity of the destroyed
thing is evidentiary and is not required to be included in the indictment. See TEX. CODE
CRIM. PROC. ANN. art. 21.03; TEX. PENAL CODE ANN. 37.09(a)(1); Mays, 967 S.W.2d at
406.
We sustain the State’s sole issue.
III. CONCLUSION
We reverse the trial court’s order quashing count one of the State’s indictment and
remand for further proceedings consistent with this opinion.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of July, 2015.
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