IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0669-13
GREGORY THORNTON, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
LUBBOCK COUNTY
Cochran, J., filed a dissenting opinion in which Meyers and Johnson, JJ., joined.
DISSENTING O P I N I O N
I respectfully dissent. Appellant was undeniably guilty of the Class C misdemeanor of possession of drug paraphernalia. Little did he know that, by clumsily trying to abandon his crack pipe, he was setting himself up for a third-degree felony conviction for tampering with evidence, and, because of his priors, a sentence of 45 years’ imprisonment. The Seventh Court of Appeals found the evidence insufficient to support the element of “concealment,” but this Court reforms the judgment to reflect the separate offense of “attempted” tampering with evidence and remands for a new punishment hearing. I think that this was a Class C offense from beginning to end. I disagree that evidence of a person throwing down contraband during a police pursuit or detention is sufficient, by itself, to constitute either concealment or attempted concealment for purposes of our tampering-with-evidence statute. That act of abandoning contraband demonstrates prior possession of it, not its concealment.
Our tampering-with-evidence statute, Section 37.09 of the Penal Code, is based on the corresponding Model Penal Code provision, Section 241.7. According to the Tennessee Supreme Court, some twenty-nine jurisdictions have enacted statutes based on Section 241.7. “Most, if not all, jurisdictions that utilize a version of Section 241.7 of the Model Penal Code have recognized that a defendant does not violate the statute when he or she merely ‘abandons’ physical evidence of a street crime while running from police or fleeing the scene of the crime.”
This case comes at a time when tampering or obstruction-of-justice laws are being “used increasingly against drug offenders who, in some fashion, attempt to destroy or conceal their drugs when being pursued by police.” But most states that have considered the matter have concluded that when
a defendant merely drops, throws down, or abandons drugs in the vicinity of the defendant and in the presence and view of the police, this conduct does not constitute concealment that will support an evidence-tampering or obstruction charge, or a conviction that is additional to and separate from the ongoing possessory offense.
As the New Hampshire Supreme Court explained in holding that a juvenile did not “conceal” a cigarette pack for purposes of the tampering-with-evidence statute when he made eye contact with the police officer coming toward him,
The juvenile may have intended to make it less likely that the cigarette pack would be associated with him or come to Officer Covie’s attention by ridding his hands of it and abandoning it in the crowded hallway. It is important, however, not to confuse the juvenile’s intent with his physical actions. [The tampering statute] uses the term “conceals” to define the actus reus of the offense. In addition to the actus reus, the statute also requires proof of a culpable mental state—here, the juvenile's intent to “impair [the] verity or availability” of the evidence. That the juvenile may have intended to make it more difficult for Officer Covie to detect the contraband does not mean that the juvenile concealed the contraband when he abandoned it.
Courts have also held that the same act of discarding contraband in the presence of police officers does not suffice to establish the offense of attempted tampering with evidence. These courts have expressed three rationales for their holding: (1) the defendant’s act of discarding contraband in the presence of, and in view of, police is an act of abandonment, not concealment for purposes of the tampering statute; (2) the defendant’s unsuccessful attempt to rid himself of contraband did not, in fact, impair its availability as evidence; and (3) the legislature surely did not intend that the defendant’s act of discarding drugs–a felony offense if tampering with evidence–should be punished more severely than his offense of possessing those same drugs. As a Florida court explained, its legislature did not intend to impose additional felony charges on a person who discards a misdemeanor amount of contraband while being observed by pursuing police officers:
If the defendants’ [conduct] in this case constituted tampering [with evidence], then a nineteen-year-old who threw a can of beer from his car when stopped by a police officer would commit not only the second-degree misdemeanor of possession of alcoholic beverages, but also the third-degree felony of tampering with the evidence. We do not believe that the legislature intended an additional felony under such circumstances.
Many of these cases hold that the evidence is insufficient to support a tampering conviction because there is no evidence that the defendant specifically intended to conceal evidence with the intent to impair its usefulness at a future trial. Instead, the evidence shows that the defendant merely intended to distance himself from the evidence. As in “What? Who me? That’s not my crack pipe.” As Justice Yeakel explained in Hollingsworth v. State, the evidence was insufficient in that case to prove that the defendant was carrying cocaine in his mouth with the specific intent to impair its availability as evidence. Rather, he was carrying it in mouth “because that is how crack cocaine is commonly carried, undoubtedly to keep it from public view.” When the defendant saw police officers, he spit it out–an act that exposed the cocaine to the officer’s view. In most of these abandonment cases, the defendant’s act of abandonment exposes, rather than conceals, the contraband.
Prosecutions for attempted tampering with the evidence are even more untenable. I agree with the court of appeals in this case that the claim that appellant’s act of “‘palming’ . . . the pipe to remove it from his pocket constituted attempted concealment” requires total speculation about whether appellant acted with the specific intent to conceal the pipe or just abandon it. “Without evidence of a specific intent to conceal, Appellant’s merely reaching into his pocket and removing the pipe is no more attempted concealment than having a drink is attempted public intoxication.” Appellant’s act exposed the crack pipe, so how can a jury determine, beyond a reasonable doubt, that he specifically intended to conceal the crack pipe by that act of exposure? This logic escapes me.
The Tennessee Supreme Court recently explained that a tampering-with-evidence conviction may not be upheld if the evidence was not permanently altered or destroyed and its concealment delayed minimally, if at all, the officers’ discovery of it:
In drug cases, for example, convictions for tampering by concealment have been upheld when a defendant swallows drugs and when a defendant flushes drugs down a toilet as police approach and the drugs are recovered. One defendant’s conviction was upheld when he tossed the drugs out of his moving vehicle, kept driving for a half mile, and the drugs were never found. Another defendant’s conviction was upheld when he tried to hide his drugs in one pocket of a billiards table.
Conversely, in other drug cases involving alleged concealment, courts have found mere abandonment when a defendant hides drugs in his socks or in his pocket, tosses drugs onto the roof of a garage while being pursued, drops drugs off a roof in view of police, or throws drug evidence over a wooden privacy fence while officers are in pursuit. Dropping a marijuana cigarette into a sewer is mere abandonment, but dropping soluble drugs down a sewer drain could make them irretrievable and could support a tampering conviction. Hiding drugs in one’s mouth without successfully swallowing them also may not constitute tampering.
For these reasons, I agree with those courts holding that, with regard to possessory offenses, the tampering-with-evidence statute applies only to
(A) completed crimes in which the evidence is permanently destroyed, altered, or concealed. For example, if a defendant swallows the purported contraband, he has destroyed its usefulness as evidence; because the evidence is gone, the defendant cannot be convicted of the drug offense, but he can be convicted of tampering with evidence; OR
(B) The attempted destruction, alteration, or concealment has materially impeded the officer’s investigation. For example, if the defendant tosses bags of cocaine down the toilet and flushes it, but the police are able to disconnect the plumbing and retrieve the soggy, but identifiable baggies, the defendant’s act of concealment was unsuccessful, but it materially impeded the officers.
I respectfully dissent to turning this Class C misdemeanor into a state-jail felony merely because appellant tried to abandon his crack pipe by exposing it to the officers’ view, not concealing from their view.
Filed: April 2, 2014
Publish