PD-1316-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/27/2015 6:49:21 PM
Accepted 3/3/2015 7:57:56 AM
March 3, 2015 ABEL ACOSTA
PD-1316-14 CLERK
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In the Court of Criminal Appeals
of Texas
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George Anthony Thurston
Petitioner-Appellant,
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v.
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State of Texas
Respondent-Appellee,
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On Discretionary Review from the Second Court of Appeals
Judgment and Opinion in 02-13-00242-CR
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An Appeal of Cause Number 1293819D from the
371st District Court of Tarrant County, Texas
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Petitioner/Appellant’s Initial Brief
(Mr.) Leigh W. Davis
1901 Central Dr. Suite 708
Bedford, Texas 76021
817.868.9500
817.887.2401 (fax)
Texas Bar No. 24029505
leighwdavis@gmail.com
Oral Argument Requested
Identity Of Parties And Counsel
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Parties to the Trial Court’s Judgment
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Defendant George Anthony Thurston
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Prosecution State of Texas (Tarrant County Criminal DA)
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Trial Counsel
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Defendant J. Steven Bush
Texas Bar No. 03496200
314 Main Street, Suite 200
Fort Worth, Texas 76102
Telephone: 817.878.2770
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Samuel Terry
Texas Bar No. 24042621
314 Main Street, Suite 200
Fort Worth, Texas 76102
Telephone: 817.882.9977
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State Timothy Bednarz
Texas Bar No. 02029039
Kelly Loftus
Texas Bar No. 00787916
Assistant District Attorneys
401 West Belknap
Fort Worth, Texas 76196-0201
Telephone: 817.884.1400
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i
Appellate Counsel
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Defendant (Mr.) Leigh W. Davis
1901 Central Drive
Suite 708 LB 57
Bedford, Texas 76021
State Bar No. 24029505
Telephone: 817.868.9500
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State Charles M. Mallin
Texas Bar No. 12867400
401 W. Belknap St.
Fort Worth, TX 76196
Texas bar no. 21492600
Telephone: 817.884.1400
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Trial Court
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371st District Court, Tarrant County
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Trial Judge
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The Honorable Mollee Westfall
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Table Of Contents
Identity of Parties and Counsel..............................................................i
Table of Contents ................................................................................iii
Index of Authorities .............................................................................v
Statement of the Case ..........................................................................vi
Statement Regarding Oral Argument.................................................viii
Issues Presented .................................................................................viii
Statement of Facts ................................................................................1
Summary of the Argument ...................................................................4
Argument .............................................................................................5
I. In the context of tampering with evidence, how far does the “im-
pending or about to take place” definition of “pending” extend? Is
it limited to investigations flowing directly from the defendant’s ac-
tions? Or does it extend to situations where the defendant is both
temporally and proximately removed from the initiation of the in-
vestigation? .....................................................................................5
In the Tampering With Evidence Statute, some courts of appeals
have held that “pending” means “impending or about to take
place.” ........................................................................................5
In this case, the court of appeals held that the evidence was suffi-
cient to show that Thurston knew there would be an investiga-
tion and took action to conceal the body. ...................................7
Thurston committed no action in the presence of any investiga-
tion; his actions were days removed from the initiation of the in-
vestigation and did not directly initiate it. The cases cited by the
court of appeals’ opinion are factually distinguishable from this
case. ............................................................................................9
iii
Other cases illustrate the need for the defendant’s or a third par-
ty’s proximity to the investigation for the defendant to tamper
with evidence. ...........................................................................11
The court of appeals holding in this case the extended the “im-
pending or about to take place” definition of “pending” beyond
anything currently found in the Texas jurisprudence. ................12
The court of appeals opinion rewrites the tampering with evi-
dence statute. Alternatively, the opinion contravenes the statute
because it affirms Thurston’s conviction for actions leading to the
investigation. ............................................................................13
Prayer.................................................................................................16
Certificate of Service...........................................................................17
Certificate of Compliance ...................................................................18
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iv
Index Of Authorities
Cases
Barrow v. State,
241 S.W.3d 919 (Tex. App.—Eastland 2007, pet. ref’d) .................7, 11
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Briscoe v. State,
No. 03-11-00014-CR, 2013 WL 4822878 (Tex. App.—Austin Aug.
29, 2013, no pet.)...............................................................6, 7, 8, 9, 10
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Lumpkin v. State,
129 S.W.3d 659 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) ........
....................................................................................6, 7, 8, 9, 10, 11
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Pannell v. State,
7 S.W.3d 222 (Tex. App.—Dallas 1999, pet. ref’d) ......................11, 12
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Lewis v. State,
56 S.W.3d 617 (Tex. App.—Texarkana 2001, no pet.) .......................11
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Statutes and Rules
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Tex. Pen. Code § 37.09(a)(1) .....................................................vi, 5, 14
Tex. Pen. Code § 12.42(b) ...................................................................vi
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v
Statement Of The Case
This was a prosecution for murder and tampering with evidence. The
State alleged that George Thurston killed Walter James Anders and
then hid and later dumped his body.1 The indictment charging tamper-
ing with evidence included two paragraphs. The first paragraph alleged
that Thurston knew a murder had been committed and altered, de-
stroyed, or concealed the body to impair its verity or availability in the
subsequent investigation or proceeding. The second paragraph alleged
that Thurston knew an official investigation or proceeding was pending
or in progress and that he altered, destroyed, or concealed the corpse
to impair its verity or availability in that investigation or proceeding.
Both indictments (the murder charge and the tampering charge were in
separate indictments) included repeat offender notices.2 Because the
tampering with evidence charge alleged tampering with a human
corpse, this offense was a second degree felony.3 The repeat offender
notice raised the range of punishment to first degree range.4
1 CR at 5.
2 Id.
3 Tex. Pen. Code § 37.09(a)(1) & (c).
4 Tex. Pen. Code § 12.42(b).
vi
The murder and tampering with evidence cases were consolidated
for trial and were tried on May 6, 2013.5 The jury acquitted Thurston
of murder in Cause No. 1286534 but convicted him of tampering with
evidence in this case.6 The jury handed down an 80 year sentence.7
On the jury’s punishment verdict, the trial court sentenced Thurston
to 80 years confinement entering a judgment to that effect.8 The trial
court certified Thurston’s right to appeal.9 Thurston was again found
indigent, and the trial court appointed counsel for appeal.10 His notice
of appeal was timely.11 On appeal, the court of appeals affirmed and
denied rehearing.
Thurston sought discretionary review on the following question:
In the context of tampering with evidence, how far does
the “impending or about to take place” definition of
“pending” extend? Is it limited to investigations flowing
directly from the defendant’s actions? Or does it extend to
situations where the defendant is both temporally and
proximately removed from the initiation of the investiga-
tion?
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On January 28, 2015, this court granted review on this question.
5 See e.g., RR Vol. 3.
6 CR at 48.
7 CR at 58.
8 CR at 62.
9 CR at 67.
10 CR at 70.
11 CR at 68.
vii
Statement Regarding Oral Argument
This Court granted discretionary review but denied oral argument.
Should the Court later decide that oral argument would be helpful,
Thurston would desire to present argument. Thurston believes oral ar-
gument would be beneficial given the unique facts of this case and the
legal issue.
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Issues Presented
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I. In the context of tampering with evidence, how far does the “im-
pending or about to take place” definition of “pending” extend? Is it
limited to investigations flowing directly from the defendant’s actions?
Or does it extend to situations where the defendant is both temporally
and proximately removed from the initiation of the investigation?
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viii
Statement Of Facts
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By his own admission—he testified—George Thurston shot and killed
Walter James Anders in self-defense. On a Friday morning in May
2012 around 10 a.m., the two went to the liquor store and bought al-
cohol—Anders a bottle of rum; Thurston a six-pack of beer12—and re-
turned to Lisa Juran’s house where Thurston lived13 and Anders helped
with odd jobs.14 This day the job was repairing soffits.15 Thurston had
had three beers16 when he decided it was time to clean the guns17—
something he did every month.18 This was around 3 in the afternoon.19
Thurston had gotten the first gun out and had taken it to a workbench
in the garage but had not yet disassembled it when Anders,20 who’d
downed about a third-of-a-bottle of rum at this point,21 came into the
garage drunk.22 Thurston was upset that Anders was drunk, and they
12 RR 6 at 151.
13 RR 6 at 137.
14 RR 6 at 145.
15 RR 6 at 145.
16 RR 6 at 153.
17 RR 6 at 154.
18 RR 6 at 204.
19 RR 6 at 154.
20 RR 6 at 154–55.
21 RR 6 at 155.
22 RR 6 at 156–57.
1
argued.23 Anders picked up a knife and lunged at Thurston.24 Thurston
fought Anders off heaving him away.25 Anders landed in a pile of milk
crates.26 Anders still had the knife27 and was trying to get up.28
Thurston told him twice, “drop the knife.”29 Anders did not drop it.30
Scared for his life,31 Thurston grabbed the gun from the workbench
and shot him.32 He literally emptied the magazine.33 Bullets hit Anders
in the feet, hands, thighs, and chest.34 Anders was shot, 12 times in all,
and died.35
Thurston put the pistol in a desk drawer.36 He walked out to the
front porch, sat down with a beer, and rolled a couple of cigarettes “to
think of what best to do.”37 After a while, he drove to the store,
23 RR 6 at 157–58.
24 RR 6 at 158–59.
25 RR 6 at 158.
26 RR 6 at 159.
27 RR 6 at 159.
28 RR 6 at 159.
29 RR 6 at 159.
30 RR 6 at 159.
31 RR 6 at 160.
32 RR 6 at 159.
33 RR 6 at 160.
34 RR 6 at 195–96.
35 RR 6 at 160, 164.
36 RR 6 at 164.
37 RR 6 at 165.
2
bought more beer and tobacco, and “drove around a little bit.”38 Lisa
Juran, the home’s owner, wasn’t going to be back until late that
evening.39
After a while, Thurston realized that no one must have heard the
shots since the police never showed up.40 He thought about calling the
police himself but wanted to talk to Juran first.41 It got late, and he
went inside, turned on the television, and fell asleep on the couch.42
The next morning, he returned to the garage, stuffed the body into a
sleeping bag, wrapped the sleeping bag with a blue tarp, tied that with
a rope, and stuffed the whole mess under a workbench.43
It was May in Texas, and the body quickly started decomposing. To
combat the smell, Thurston placed air fresheners and splashed some
bleach around the garage.44 When Juran noticed and asked about the
smell, Thurston told her an animal must have died in the garage.45
38 RR 6 at 165.
39 RR 6 at 166.
40 RR 6 at 166.
41 RR 6 at 166.
42 RR 6 at 167.
43 RR 6 at 170–72.
44 E.g., RR 5 at 36–37, 64–65, 175.
45 RR 6 at 174.
3
The next night, Thurston told Juran he had shot Anders.46 This up-
set her,47 but she helped him load the tarp-wrapped body into the back
of his pickup truck.48 The next night, May 27th, Thurston dumped the
body near some railroad tracks close to Juran’ house.49
On May 30, 2012, railroad workers found the body.50 They imme-
diately called police, who began an investigation.51
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Summary Of The Argument
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This Court should find that the court of appeals extended the “impend-
ing or about to take place” definition of “pending.” Here, no investiga-
tion was under way. Moreover, Thurston took no action in the pres-
ence of or in proximity to anyone who would investigate or cause an
investigation to begin. He was temporally and proximately removed
from the initiation of the investigation: Anders had been dead for two
days before Thurston moved his body; the investigation did not com-
46 RR 6 at 169.
47 RR 6 at 169.
48 RR 6 at 173.
49RR 6 at 176. There’s actually some disagreement about which night Thurston dumped
the body. According to him it was Sunday, May 27th. According to railroad workers it
was likely Monday, May 28th, which was the day a pickup truck matching Thurston’s was
spotted near the area where the body was found. Thurston maintains it couldn’t have been
May 28th because he and Ms. Juran were out of town. In any event, it was at least two
days after Thurston’s dumping of the body that it was found.
50 RR 4 at 52.
51 RR 4 at 69, 165.
4
mence for two days after Thurston moved Anders’s body; the investiga-
tion only commenced when railroad workers found Anders’s body and
called police. This court of appeals opinion allows a defendant to be
convicted of tampering with evidence merely because an investigation
was later commenced or because the defendant’s actions led to the dis-
covery of the evidence.
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Argument
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I. In the context of tampering with evidence, how far does the “im-
pending or about to take place” definition of “pending” extend? Is it
limited to investigations flowing directly from the defendant’s actions?
Or does it extend to situations where the defendant is both temporally
and proximately removed from the initiation of the investigation?
!
In the Tampering With Evidence Statute, some courts of appeals have
held that “pending” means “impending or about to take place.”
Texas Penal Code section 37.09(a)(1) provides as follows: “(a) A per-
son commits an offense if, knowing that an investigation or official
proceeding is pending or in progress, he: (1) alters, destroys, or con-
ceals any record, document, or thing with intent to impair its verity,
legibility, or availability as evidence in the investigation or official pro-
ceeding[.]”52 Some courts of appeals, including the Fort Worth Court
52 Tex. Pen. Code § 37.09(a)(1).
5
of Appeals in this case, have extended the definition of “pending” to
include “impending or about to take place.”53
The genesis of the “impending or about to take place” extension of
section 37.09’s “pending” appears to be Lumpkin v. State.54 There, the
First Court of Appeals considered the difference, if any, between
“pending” and “in progress in the tampering evidence.55 The court
noted that the definitions of “pending” and “in progress” appeared to
be synonymous.56 Therefore, to give every word in the statute effect
and to avoid redundancy, the court continued on to the second defini-
tion of “pending.”57 Relying on a single dictionary’s definition and
statutes from seven states,58 the First Court of Appeals held “that the
term ‘pending’ in the Texas tampering-with-evidence statute means
‘impending, or about to take place.’”59
53Slip Op. at 2 (citing Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref’d); Briscoe v. State, No. 03-11-00014-CR, 2013 WL 4822878, at *7
(Tex. App.—Austin Aug. 9, 2013, no pet.) (mem. op., not designated for publication).
54 129 S.W.3d 659 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
55 Id. at 663.
56 Id.
57 Id.
58More specifically, these: Random House Webster's Unabridged Dictionary (2d ed.
2001); Model Penal Code § 241.7; Colo. Rev. Stat. Ann. § 18–8–610 (West 2003); D.C.-
Code Ann. § 22– 723 (2001); Fla. Stat. Ann. § 918.13 (West 2003); Ky. Rev. Stat. Ann. §
524.100 (Banks–Baldwin 2003); Mont. Code Ann. § 45–7–207 (2002); Ohio Rev. Code
Ann. § 2921.12 (West 2003); Utah Code Ann. § 76–8–510.5 (2003). See Lumpkin, 129
S.W.3d At 663.
59 Id.
6
In 2007, the Eastland Court of Appeals, citing Lumpkin, embraced
this definition in Barrow v. State.60 In 2013, the Austin Court of Ap-
peals, citing both Lumpkin and Barrow, embraced this definition in
Briscoe v. State.61 Now, in this case, the Fort Worth Court of Appeals,
citing Lumpkin and Briscoe, adopted this definition: “He does not
challenge that ‘pending’ means ‘impending or about to take place.’”62
!
In this case, the court of appeals held that the evidence was sufficient to
show that Thurston knew there would be an investigation and took ac-
tion to conceal the body.
On appeal, Thurston challenged the sufficiency of the evidence sup-
porting his tampering with evidence conviction. More specifically, he
contended that an investigation was not pending or in progress when
he dumped Anders’s body near the railroad tracks. The dumping of
Anders’s body was Thurston’s last action with it. The official investiga-
tion, which was initiated by the railroad workers’ 911 call, did not
start for at least two days afterward.
The court of appeals found the evidence supporting the conviction
sufficient based on its construction of “pending.” In affirming, it reject-
60 Barrow v. State, 241 SW 3d 919, 923 (Tex. App.—Eastland 2007, no pet.).
61 No. 03-11-00014-CR, 2013 WL 4822878 (Tex. App.—Austin Aug. 29, 2013, no pet.)
62 Slip Op. at 2.
7
ed Thurston’s argument and affirmed because “pending” meaning
“impending or about to take place”:
In part of his single issue, Thurston argues that the evi-
dence is insufficient to support his conviction under this
paragraph because there is no evidence that he knew an in-
vestigation was pending or in progress when he dumped
the corpse at least two days before the police began inves-
tigating. He does not challenge that ‘pending’ means ‘im-
pending or about to take place.’63
!
The court cited Lumpkin v. State64 and Briscoe v. State.65 Ultimately,
the opinion held as follows:
[T]he jury could have rationally found beyond a reasonable
doubt that Thurston knew there would be an investigation
after he killed the deceased and took actions to conceal the
body with intent to impair its verity or availability as evi-
dence in that investigation. Particularly, the jury could
have relied on Thurston’s testimony about his actions be-
tween May 25 and June 20, in addition to the extensive ev-
idence regarding the corpse’s discovery, the state of the
corpse upon its discovery, and the subsequent investiga-
tion.66
!
!
63 Slip Op. at 2 (citations and footnotes omitted).
64 129 S.W.3d 659, 663 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
65No. 03-11-00014-CR, 2013 WL 4822878, at *7 (Tex. App.—Austin Aug. 29,
2013, no pet.).
66 Slip Op. at 6.
8
Thurston committed no action in the presence of any investigation; his
actions were days removed from the initiation of the investigation and
did not directly initiate it. The cases cited by the court of appeals’ opin-
ion are factually distinguishable from this case.
The court of appeals opinion relied on Lumpkin v. State67 and Briscoe
v. State.68 In Lumpkin, the defendant was stopped for speeding by a
Harris County Sheriff’s deputy.69 As the deputy approached the car,
Lumpkin swallowed cocaine.70 Lumpkin swallowed the cocaine in the
presence of the deputy who saw him “ingesting some white substance
and then was consuming it down with a cup of what [he] thought at
the time was liquid.”71
In Briscoe, the defendant enjoyed rough sex with prostitutes—espe-
cially choking them during intercourse. Briscoe hired a prostitute, Amy
Dickey.72 Dickey worked with a driver who took her to Briscoe’s
apartment complex.73 When she reached Briscoe’s apartment, she
called her driver to report the apartment number she would be in.74
67 129 S.W.3d 659, 663 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
68No. 03-11-00014-CR, 2013 WL 4822878, at *7 (Tex. App.—Austin Aug. 29,
2013, no pet.).
69 Lumpkin, 129 S.W.3d at 661.
70 Id.
71 Id.
72 Briscoe, 2013 WL 4822878 at *1.
73 Id.
74 Id.
9
There, Briscoe and Dickey had intercourse.75 Briscoe admitted that he
choked her for five minutes killing her.76 Briscoe moved and hid the
body while Dickey’s driver waited for her.77 The court held that the
presence of Dickey’s driver meant that Briscoe “was aware Dickey’s
driver was waiting outside for her and would notice that she was miss-
ing, thus triggering an investigation into her disappearance.”78
In both Lumpkin and Briscoe, the defendants committed their of-
fenses in the presence or proximity of another individual—in Lump-
kin, the Harris County Sheriff’s deputy; in Briscoe, the prostitute’s dri-
ver. The courts reasoned that these persons would immediately investi-
gate or cause to be investigated the crime for which the evidence was
tampered. Here, there was no such person. Thurston did not act in the
presence of a law enforcement officer investigating any offense much
less an offense involving Anders’s body. Thurston did not act in prox-
imity to anyone who would have cause to report an offense—any of-
fense. Instead, he merely moved Anders’s body two days after he was
killed to the place where it was discovered a couple of days after being
moved.
75 Id.
76 Id.
77 Id. at *7.
78 Id.
10
!
Other cases illustrate the need for the defendant’s or a third party’s
proximity to the investigation for the defendant to tamper with evi-
dence.
The cases cited by both sides in Lumpkin illustrate this. In Lumpkin,
the State cited Lewis v. State79 while the defense cited Pannell v. State.80
Though cited by opposing parties, both cases illustrate this principle.
In Lewis, the defendant attempted—mostly successfully—to eat a
baggy of cocaine after being stopped by the police for an improperly
positioned dealer tag.81 When the officer removed the defendant from
the car for officer safety, he saw him eating the baggy of cocaine.82 The
defendant refused the officer’s commands to spit the bag out.83 His
conviction for tampering with evidence was affirmed.84
Conversely, if the investigation pertaining to the tampered with evi-
dence has not commenced, the defendant cannot be guilty of evidence
79 56 S.W.3d 617 (Tex. App.—Texarkana 2001, no pet.).
80 7 S.W.3d 222 (Tex. App.—Dallas 1999, pet. ref’d)
81 Lewis, 56 S.W.3d at 618–19.
82 Id. at 619.
83 Id.
84Id. at 625. The same was true in Barrow v. State, 241 S.W.3d 919 (Tex. App.—
Eastland 2007, pet. ref’d). There, the officer was conducting surveillance on a sus-
pected drug trafficking location. Id. at 920–21. After witnessing a possible nar-
cotics transaction, the officer stopped the defendant. Id. When stopped, the defen-
dant had an off-white, rock-like substance in his mouth. Id. Instead of spitting it
out as commanded by the officer so that the substance could be recovered and the
controlled substance offense investigated, the defendant swallowed it. Id.
11
tampering. In Pannell, when the police officer was attempting to make
a traffic stop, Pannell threw marijuana and a lit joint out his car win-
dow.85 The conviction was reversed because the investigation at the
time the defendant threw the pot out the window was limited to a traf-
fic violation not a marijuana offense.86
!
The court of appeals holding in this case the extended the “impending
or about to take place” definition of “pending” beyond anything cur-
rently found in the Texas jurisprudence.
The court of appeals extended the construction of “impending or
about to take place” definition of “pending” beyond existing Texas ju-
risprudence. No investigation was “impending or about to take place”
when Thurston moved the body. Thurston didn’t tamper with any evi-
dence in the presence of a law enforcement officer—much less one in-
vestigating a crime. And unlike Briscoe, there was no other individual
present when Anders died. Anders had already been dead for a couple
of days when his body was moved and a couple more before his body
was found and the investigation commenced.
Thurston is removed from the initiation of the investigation both
temporally and proximately. His moving Anders’s body was two days
85 Pannell, 7 S.W.3d at 223.
86 Id. at 224.
12
after Anders’s death and two days before any law enforcement in-
volvement. His moving Anders’s body ultimately led to its discovery—
but only indirectly. Railroad workers found it and called 911, which
triggered the investigation. The holding in this case is a holding under
which there’s no practical limit to “impending or about to take place.”
At a minimum, “impending or about to take place” is now days re-
moved from the underlying actions and days before any investigation.
!
The court of appeals opinion rewrites the tampering with evidence
statute. Alternatively, the opinion contravenes the statute because it af-
firms Thurston’s conviction for actions leading to the investigation.
The court of appeals opinion appears to have affirmed, at least in part,
based on the subsequent investigation:
[T]he jury could have rationally found beyond a reasonable
doubt that Thurston knew there would be an investigation
after he killed the deceased and took actions to conceal the
body with intent to impair its verity or availability as evi-
dence in that investigation. Particularly, the jury could
have relied on Thurston’s testimony about his actions be-
tween May 25 and June 20, in addition to the extensive ev-
idence regarding the corpse’s discovery, the state of the
corpse upon its discovery, and the subsequent investiga-
tion.87
!
The court of appeals affirmed because there was a subsequent investi-
gation? Thurston knew that an investigation was pending because one
87 Slip Op. at 6 (emphasis added).
13
occurred in the future? That is tantamount to rewriting 37.09(a)88 to
read “if, an investigation or official proceeding might or actually does
occur at some point in the future, ….”
Alternatively, this opinion affirmed Thurston’s conviction for tam-
pering with evidence when his actions actually led to the discovery of
the body, which led to the investigation. At its outset, the opinion casts
Thurston’s issue thusly: “Thurston argues that the evidence is insuffi-
cient to support his conviction under this paragraph because there is no
evidence that he knew an investigation was pending or in progress
when he dumped the corpse at least two days before the police began
investigating.”89 The opinion affirms, at least in part, based on
“Thurston’s testimony about his actions between May 25 and June 20,
in addition to the extensive evidence regarding the corpse’s discovery,
the state of the corpse upon its discovery[.]” This ignores that
Thurston’s moving the body—ostensibly the tampering act—led to its
discovery. Moreover, it ignores Thurston’s desire that the body be
88Texas Penal Code section 37.09(a)(1): “(a) A person commits an offense if,
knowing that an investigation or official proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record, document, or thing with intent to im-
pair its verity, legibility, or availability as evidence in the investigation or official
proceeding[.]”
89 Slip Op. at 2.
14
found.90 Section 37.09(a) criminalizes impairing evidence. Thurston’s
moving the body did not impair it; it made the body available. Thus,
the opinion affirms on a basis not a violation of the statute.
!
!
!
90RR 6 at 176 (“I took him down there by the tracks where they would find him,
somebody would find him, railroad tracks, driving by, somebody might drive by
and see him, you know.”).
15
Prayer
Petitioner/Appellant respectfully prays that this Court will reverse the
judgment of the court of appeals and find that no investigation was
“impending or about to take place” when Thurston moved Anders’s
body thereby making the evidence insufficient to support Thurston’s
conviction in this case.
!
!
Respectfully submitted,
!
/s/ Leigh W. Davis__________
(Mr.) Leigh W. Davis
1901 Central Dr. Suite 708
Bedford, Texas 76021
817.868.9500
817.887.2401 (fax)
Texas Bar No. 24029505
leighwdavis@gmail.com
!
!
16
Certificate Of Service
I hereby certify that a copy of this brief has been served on the follow-
ing persons or parties on February 27, 2015:
Appellate Division
Tarrant County Criminal District Attorney’s Office
401 W. Belknap
Fort Worth, Texas 76102
coaappellatealerts@tarrantcounty.com
!
Lisa C. McMinn
State Prosecuting Attorney
P.O. Box 13046
Capitol Station
Austin, Texas 78711
lisa.mcminn@spa.texas.gov
!
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s/ Leigh W. Davis______________
(Mr.) Leigh W. Davis
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Certificate Of Compliance
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This document complies with the typeface requirements of Tex. R.
App. P. 9.4(e) because it has been prepared in a conventional typeface
no smaller than 14-point for text and 12-point for footnotes. This doc-
ument also complies with the word-count limitations of Tex. R. App. P.
9.4(i), if applicable, because it contains 4,496 words, excluding any
parts exempted by Tex. R. App. P. 9.4(i)(1).
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s/ Leigh W. Davis_____________
(Mr.) Leigh W. Davis
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