IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1472-14
RICHARD LEE RABB, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
ROCKWALL COUNTY
M EYERS, J., delivered the opinion of the Court in which K ELLER, P.J.,
and K EASLER, H ERVEY, A LCALA, R ICHARDSON, and N EWELL, JJ., joined. Y EARY, J.,
concurred. J OHNSON, J., dissented.
OPINION
Appellant was charged with the offense of tampering with evidence by destruction.
At trial, the court found Appellant guilty and sentenced him to six years’ imprisonment.
Appellant appealed, asserting that the evidence was legally insufficient to support his
conviction and the court of appeals agreed. Rabb v. State, 387 S.W.3d 67, 73 (Tex. App. –
Amarillo Oct. 31, 2012). The State then filed a petition for discretionary review, which we
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granted in order to consider whether the court of appeals erred in holding that the evidence
was legally insufficient. We agreed with the court of appeals’ decision, but remanded the
case to the court of appeals to have it determine whether Appellant’s conviction should be
reformed to a conviction on the lesser-included offense of attempted tampering with evidence
under Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014). Rabb v. State, 434 S.W.3d
613, 618 (Tex. Crim. App. 2014). The court of appeals found that it could not reform
Appellant’s conviction because he lacked the specific intent to destroy the evidence. Rabb
v. State, 446 S.W.3d 892, 895 (Tex. App. – Amarillo Oct. 8, 2014). The State filed a petition
for discretionary review, which we granted in order to consider whether the court of appeals
erred in its application of Thornton and in choosing not to reform the judgment to the lesser-
included offense of attempted tampering with evidence.
BACKGROUND
Appellant was stopped by police officers at a Walmart store as part of a robbery
investigation and consented to being searched. While being searched, Appellant pulled a
small plastic baggie out of his pocket, hid it in his hand, and, when noticed by investigators,
put the baggie in his mouth and swallowed it before the investigating officers could see what
it contained. Appellant later told a medic that the baggie contained pills. No one ever made
an attempt to recover the baggie or the pills.1 The State charged Appellant with tampering
with evidence, with the indictment stating that the Appellant “knowing that an investigation
1
For a more complete version of the underlying facts of this offense, see Rabb v. State,
434 S.W.3d 613, 614-16.
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was in progress, to-wit: theft, intentionally or knowingly destroy[ed] a plastic baggie with
intent to impair its availability as evidence in the investigation.” Appellant was then
convicted in a bench trial and sentenced to six years of confinement.
On appeal, Appellant argued that the evidence presented was insufficient to prove that
he destroyed the baggie. The court of appeals agreed, reversed the judgment of the trial court,
and entered an acquittal. Rabb v. State, 387 S.W.3d 67, 73 (Tex. App. – Amarillo 2012). The
State appealed to this Court, arguing that it was reasonable for the factfinder to infer that the
baggie was destroyed in Appellant’s digestive tract. We concluded that, because no evidence
was presented that would allow the factfinder to reasonably make this inference, the court
of appeals was correct and the evidence was insufficient to uphold Appellant’s conviction.
Rabb, 434 S.W.3d at 617-18. However, we remanded the case back to the court of appeals
to decide whether the judgment needed to be reformed to reflect a conviction of the lesser-
included offense, attempted tampering, in light of the recent Thornton decision, which
mandates reformation when: 1) in the course of convicting the appellant of the greater
offense, the jury necessarily also found every element necessary to convict the appellant of
the lesser-included offense; and 2) there is sufficient evidence to support a conviction for the
lesser-included offense. Id. at 618.
On remand, the court of appeals applied the Thornton analysis and held that, because
the second element of attempted tampering–the specific intent to destroy the baggie–was not
necessarily found by the factfinder, the judgment could not be reformed. Rabb v. State, 446
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S.W.3d 892, 896 (Tex. App. – Amarillo 2014). The court of appeals reasoned that, because
the indictment alleged knowing or intentional destruction, the factfinder did not necessarily
find that Appellant had intentionally, rather than knowingly, destroyed the baggie. The court
of appeals came to this conclusion after examining Thornton, in which we ordered a
judgment to be reformed to a conviction for attempted tampering because the jury charge
required the jury to have found, beyond a reasonable doubt, that Thornton “intentionally and
knowingly concealed physical evidence.” The Thornton opinion also asserted, in a footnote,
that the requirement of intent to impair the item’s availability as evidence necessarily also
requires that the actor have a “concomitant intent to alter, destroy, or conceal the evidence.”
425 S.W.3d at 300 n.59. The court of appeals in this case discussed both of these rationales
and ultimately held that, because there was no jury charge and the indictment alleged that
Appellant “intentionally or knowingly” destroyed the evidence, the trial court did not
necessarily determine that Appellant acted with any specific intent to destroy the baggie
containing the pills, and no rationale would allow it to conclude otherwise. Rabb, 446 S.W.3d
at 895-96. Therefore, the answer to the first question of the Thornton analysis was “no,” and
the judgment could not be reformed. Id. at 896.
We granted the State’s petition for discretionary review to consider whether the court
of appeals correctly applied the Thornton analysis. Specifically, we granted review on the
following grounds:
(1) Because the legislature has determined that criminal attempt is a lesser-
included offense of the completed offense, does a jury that finds guilt of the
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completed offense “necessarily find” guilt of attempt?
(2) When the fact-finder determines that the defendant committed an act “with
intent to [cause a specific result],” does it necessarily find that he intended to
commit the act?
(3) What is the remedy for insufficient evidence of the charged offense when
the evidence was sufficient to prove a lesser included offense but the record
does not indicate that the fact-finder affirmatively found the lesser-included
offense?
Although these questions are framed broadly, we will be addressing each only as it relates
specifically to this case.
ARGUMENTS OF THE PARTIES
State’s Argument
The State first asserts that, as a matter of law, attempt of an offense will always be
found when there is a guilty verdict on the completed offense. It points to Article 37.09(4)
of the Texas Code of Criminal Procedure which states, “An offense is a lesser included
offense if ... it consists of an attempt to commit the offense charged or an otherwise included
offense.” The State also states that this Court has previously determined that a jury that finds
guilt as to a charged offense necessarily finds guilt as to all of the lesser offenses. Wasylina
v. State, 275 S.W.3d 908, 910 (Tex. Crim. App. 2009); Price v. State, 434 S.W.3d 601, 609
(Tex. Crim. App. 2014). The State also considers Gonzales v. State, 532 S.W.2d 343 (Tex.
Crim. App. 1976), in which we determined that, because attempt requires specific intent and
the culpable mental state for involuntary manslaughter is recklessness, attempted involuntary
manslaughter does not exist. The State argues that this case is not instructive because it does
not address whether an offense is included within another, and Appellant is not arguing that
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attempted tampering with evidence does not exist.
The State next argues that, even if attempt cannot be applied to all offenses, it applies
to those that require specific intent. It contends that, when a factfinder convicts a defendant
of an offense that requires an act to be committed with intent to cause a specific result, the
factfinder necessarily finds specific intent to commit the offense. The State cites to the
discussion in Thornton to support this idea and also asserts that the court of appeals erred in
reasoning that the decision in Thornton hinged on the jury charge. Rather, the State says, it
is the intent to achieve the result, and not the intent to engage in the conduct, that
demonstrates the jury’s finding of specific intent to tamper with evidence. The State also
argues that the attempt statute requires specific intent to commit the offense, not the specific
intent as to a single element of the offense and, therefore, Appellant needed only to have the
specific intent to tamper with the evidence, regardless of whether he wanted it destroyed or
concealed.
Finally, the State believes that, if we should agree with Appellant that the conviction
cannot be reformed to attempted tampering with evidence, the proper remedy is retrial on the
lesser-included offense rather than an acquittal. This remedy, the State argues, does not
implicate double jeopardy because if the trial court did not necessarily find attempted
tampering, then it never decided the issue in the trial and there is no bar.
Appellant’s Argument
Appellant states that the crux of this case lies in the indictment. Contrary to the State’s
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position, he argues that attempt is not always found when there is a guilty verdict on the
completed offense, and each case must be evaluated with the test set forth in Thornton.
Furthermore, Appellant argues that this Court did not remand this case to the court of appeals
for it to decide if attempted tampering is a lesser-included offense of tampering, but rather
whether the State proved the elements of attempted tampering by destruction and the
judgment should be reformed under the Thornton analysis.
Appellant contends that the State’s argument that criminal attempt applies to all
offenses requiring specific intent actually results in the elimination of due process. Under the
State’s theory, Appellant argues, he could be convicted of attempted tampering regardless
of what criminal act was used to do so, even though only destruction was pled, which would
mean that there is no longer a requirement to prove each element alleged when considering
the lesser-included offense. Rather, Appellant asserts, because the legislature set out three
different ways tampering can be committed, and the State alleged only one, it needed to
prove that Appellant had the specific intent to destroy the evidence in order for Appellant’s
conviction to be validly reformed.
Finally, Appellant argues that his due-process rights would be violated if the judgment
were to be reformed. He contends that, if this Court reforms the judgment, it would be the
equivalent to reforming the indictment after the case was tried. Furthermore, Appellant
argues that remanding the case for a retrial would be a double-jeopardy violation because he
has already been tried for the greater offense.
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THORNTON
In Thornton, this Court examined an issue similar to the one before us today. There,
the appellant had been convicted by a jury of tampering with evidence by concealment for
taking a crack pipe out of his pocket and dropping it on the ground in front of two police
officers. 425 S.W.3d at 292. The court of appeals then held that the evidence of concealment
was insufficient to support the conviction because, at all times during the incident, at least
one of the officers knew of the crack pipe’s presence. Id. This Court then granted the State’s
petition for discretionary review and, without considering the issue of the sufficiency of the
evidence, simply remanded the case to the court of appeals to consider reforming the
conviction to attempted tampering with evidence in light of the recent decision in Bowen v.
State, 374 S.W.3d 427 (Tex. Crim. App. 2012). Id. The court of appeals declined to reform
the judgment, and this Court again granted review. Id.
The Court first addressed whether the State’s failure to request the lesser-included-
offense instruction in the jury charge caused it to lose the right to request reformation of the
conviction. Id. at 295. This Court determined that, where reformation is an appropriate
remedy, “it should be applied regardless of whether either party requested or contested–or
whether the jury was actually given–an instruction on the lesser-included offense at trial.”
Id. at 297.
Our opinion in Thornton next discussed Bowen v. State and whether it limited
reformation of a conviction only to those cases where the evidence of an “aggravating
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element,” rather than an “essential element,” was found to be insufficient. Id. at 297-98. This
Court reasoned that the type of acquittal that was avoided in Bowen–one based only on
insufficient evidence of an aggravating element–would be no more unjust than an acquittal
in a case in which there was, instead, insufficient evidence of an essential element but the
jury necessarily found every element of the lesser-included offense. Id. at 298-99. Therefore,
we concluded that reformation of a conviction is required where 1) the jury necessarily found
every element needed to convict the appellant of the lesser-included offense and 2) the
evidence that was presented at the appellant’s trial is sufficient to support a conviction on
that lesser-included offense. Id. at 299-300.
Finally, we turned to the application of this concept to Thornton’s case, first asking
whether the jury necessarily found all of the elements of attempted tampering with evidence
by concealment, which we enumerated as: “1) knowing that an offense had been committed,
and with 2) the specific intent to conceal the crack pipe, and 3) the specific intent to impair
the availability of the crack pipe as evidence in a later investigation or proceeding, the
appellant 4) did an act amounting to more than mere preparation that 5) tended but failed to
result in concealment of the crack pipe.” Id. at 300-01. At this point, in a footnote, we
addressed the second element and how the tampering with evidence by concealment statute
does not seem to require that the actor intend to conceal the evidence. Id. at 301 n.59. If true,
this would mean that a jury that finds guilt to the completed offense would not necessarily
have found guilt on the attempt because they did not necessarily find the specific intent to
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conceal. However, we concluded that the phrasing of the statute required that the actor have
a concomitant intent to alter, destroy, or conceal because “an actor could not harbor an intent
to impair the availability of the evidence, carry out that intent by means of concealment, and
yet not have had a ‘conscious objective’ to conceal the evidence.” Id. In addition to this
rationale, we asserted that, because the jury charge instructed the jury to find Thornton guilty
if, in part, they found that he intentionally and knowingly concealed physical evidence, the
jury did agree, by rendering the guilty verdict, that he had intentionally concealed the
evidence. Id. at 301 n.60.
With these comments, we easily determined that the first four elements of the offense
were found by the jury, and then turned to consider the last element–that Thornton’s actions
had “tended but failed to result in concealment of the crack pipe.” Id. at 301-02. We noted
that under Section 15.01(c) of the Texas Penal Code, the fact that the offense was actually
committed is not a defense to prosecution for attempt of that offense, and therefore, “the
jury’s finding of actual commission subsumes a finding that the appellant’s conduct ‘tend[ed]
but fail[ed]’ to effect the commission of tampering with evidence.” Id. at 302. We held,
therefore, that the jury did necessarily find all of the elements of attempted tampering in this
case.
Finally, we considered whether the evidence presented at Thornton’s trial was
sufficient to show attempted tampering. We determined that, because evidence was presented
that Thornton took the pipe out of his pocket “stealthily” and he “palmed” the pipe as he
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removed it from his pocket, and that it was reasonable for the jury to infer that Thornton
believed the pipe to be concealable, there was sufficient evidence to support a jury finding
that he had the specific intent to conceal the pipe. Id. at 304-07. With these conclusions, we
reversed the court of appeals and remanded the case to the trial to reform the judgment
against Thornton to reflect a conviction of attempted tampering with evidence. Id. at 307.
ANALYSIS
As discussed, the issue presented in this case is extremely similar to that which
appeared in Thornton, and Thornton, as established precedent, is instructive to our decision
today. We made clear in Thornton that the first step in the analysis when deciding whether
to reform a judgment is determining whether, in the course of convicting the appellant of the
greater offense, the jury necessarily found every element necessary to convict the appellant
for the lesser-included offense. Id. at 300. And as demonstrated in Thornton, irrespective of
T EX. C ODE C RIM. P ROC. art. 37.09(4) stating that criminal attempt is a lesser-included offense
of a completed offense, analysis of this question should be undertaken in every case.
Although we ultimately conclude in this case that the jury did necessarily find the elements
of attempted tampering with evidence, this may not be the case with other offenses that
require only a reckless mental state. See Gonzales v. State, 532 S.W.2d 343 (Tex. Crim. App.
1976). Therefore, as to the State’s first issue, we hold that, although it may be uncommon,
a jury does not “necessarily find” guilt of attempt when it convicts on the completed offense,
and the full analysis of the issue must be undertaken when considering reformation of a
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conviction.
In this case, for the first prong of the Thornton reformation analysis to be met, the
factfinder must necessarily have found that, 1) knowing that an offense had been committed,
and 2) with specific intent to destroy the baggie, and 3) with specific intent to impair the
availability of the baggie as evidence, 4) Appellant did an act amounting to more that mere
preparation that 5) tended but failed to result in destruction of the baggie. In finding
Appellant guilty of completed destruction of evidence, we can easily conclude–much like the
court of appeals–that the trial judge must have found elements one, three, four, and five. See
id. at 301-02.
In examining the second element of attempted tampering, we again refer to Thornton.
Although Appellant argues that the issue hinges on the wording of the indictment, we
disagree. As noted in Thornton,
[E]ven if the jury had made no explicit finding vis-à-vis the appellant’s
specific intent to engage in an act of concealment, by finding that the appellant
concealed the crack pipe with the “intent to impair its verity, legibility, or
availability as evidence,” the jury by implication necessarily found that he
harbored a specific intent to conceal the pipe. . . . To hold otherwise would
require us to subscribe to the inconsistent notions that the jury 1) believed that
the appellant intended to impair the crack pipe’s availability as evidence, 2)
believed that he intended to conceal the crack pipe, and yet 3) harbored some
implicit doubt about whether he specifically intended to commit the crime of
tampering with evidence.
Id. at 301 n.60. Because Appellant was tried and convicted in a bench trial, there was no jury
charge in his case–only an indictment, which alleged “intentional or knowing” destruction
of evidence. While these mental states alleged in the indictment appear to have allowed the
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judge to find either knowing or intentional destruction, we have already determined that, by
concluding that Appellant harbored the intent to impair the evidence’s use, the judge
necessarily also concluded that Appellant had the specific intent to conceal the baggie. Id.
Therefore, we conclude that the factfinder in this case did necessarily find all of the elements
necessary to convict Appellant of attempted tampering with evidence. We are not, however,
making the broad holding that in every case where the factfinder determines that the
defendant had intent to cause a specific result, it necessarily also found that the defendant
intended to commit the act, as the State invites us to. We are confirming our analysis in
Thornton with respect to specific intent and attempted tampering with evidence and applying
it to the case at hand.
Because the court of appeals concluded that the trial judge did not necessarily find
every element necessary to convict Appellant of attempted tampering, it never reached the
second prong of the Thornton analysis–whether the evidence was sufficient to support such
a conviction. Rabb, 446 S.W.3d at 896. Therefore, after two previous remands and in the
interest of judicial economy, we will consider it now. Davison v. State, 405 S.W.3d 682, 691-
92 (Tex. Crim. App. 2013) (“[W]hen the proper resolution of the remaining issue is clear,
we will sometimes dispose of the case in the name of judicial economy.”).
In analyzing this prong, we must determine whether a rational trier of fact could have
found all of the elements of attempted tampering beyond a reasonable doubt, viewing the
evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319,
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99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim.
App. 2003). The evidence that was presented to the court included the security video footage
of the officers’ encounter with Appellant (which showed the officers speaking with him, him
putting the baggie in his mouth, and then officers restraining and tasing him), testimony from
the officers that they explained to Appellant that he was being questioned because of his
step-brother’s theft, and the medical report that stated that Appellant had told the medic the
baggie contained pills. We find that this evidence is legally sufficient to support a conviction
of Appellant for attempted tampering with evidence by destruction.
The testimony of the officers that they informed Appellant of the reason they were
questioning him–an investigation into theft from the store–is sufficient to prove the first
element–that Appellant knew that an offense had been committed. It is of no consequence
that the baggie of pills was not related to the theft investigation, so long as Appellant
intended to impair the baggie’s availability in an investigation he knew was in progress.
There is no requirement that the title of the investigation and evidence that was destroyed or
concealed match. Williams v. State, 270 S.W.3d 140, 144-45 (Tex. Crim. App. 2008). For
the second element, while there may be no direct evidence that Appellant actually intended
to destroy rather than conceal the baggie, the swallowing of the baggie makes intended
destruction a reasonable inference for the factfinder to make. Laster v. State, 275 S.W.3d
512, 523 (Tex. Crim. App. 2009) (“[A]s long as the verdict is supported by a reasonable
inference, it is within the province of the factfinder to choose which inference is most
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reasonable.”). We previously held that there was insufficient evidence presented at
Appellant’s trial to demonstrate that the baggie had been destroyed. What we are now
examining differs, however, because we are determining only whether it was reasonable for
a factfinder to conclude that Appellant intended to destroy the baggie. As it is common
knowledge that what an individual eats might be destroyed in the stomach, it was reasonable
for the factfinder to infer that destruction was what Appellant intended. It is also reasonable
for the factfinder to have concluded that Appellant intended to impair the baggie’s use as
evidence because he did not swallow it until he was being patted down by officers, which
satisfies the third element. See Thornton, 425 S.W.3d at 306 n.85. As to the fourth and fifth
elements, the swallowing of the baggie was an act that could tend to destroy it and could
result in progress toward the destruction of it, regardless of whether destruction was
achieved. Further, the act of swallowing the baggie would have been the “last proximate act”
one would take if intending to destroy it and thus, that act crossed the line to go beyond mere
preparation. See McCravy v. State, 642 S.W.2d 450, 459-60 (Tex. Crim. App. 1980) (op. On
State’s motion for reh’g). We hold, therefore, that the factfinder could reasonably conclude
that Appellant’s acts amounted to more than “mere preparation,” and “tended but failed” to
destroy the baggie. As discussed, the fact that the destruction of the baggie may have been
completed is not a defense to the prosecution for attempted destruction. T EX. P ENAL C ODE
§ 15.01(c). It is for these reasons that we conclude that the evidence is sufficient for
Appellant to have been convicted of attempted tampering with evidence and that the second
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prong of the Thornton reformation analysis is met.
CONCLUSION
For the foregoing reasons, we disagree with the court of appeals that the factfinder in
this case did not necessarily find every element necessary to convict Appellant of attempted
tampering with evidence. We also conclude that the evidence presented at the bench trial was
sufficient to support a conviction of attempted tampering. With the two prongs of the
Thornton reformation analysis satisfied, reformation of the conviction is mandated.
Therefore, we reverse the decision of the court of appeals and order the trial court to reform
Appellant’s judgment to reflect a conviction of attempted tampering with evidence and to
conduct a new punishment hearing based on this reformed conviction.
Meyers, J.
Delivered: February 10, 2016
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