ACCEPTED
FILED 05-22-00168-cr
FIFTH COURT OF APPEALS
DALLAS, TEXAS
08/19/2022 10:15 am 8/17/2022 6:53 AM
CLAUDIA MCCOY
Fifth Court of Appeals CLERK PRO TEMPORE
IN THE Claudia McCoy
Clerk Pro Tem
COURT OF APPEALS RECEIVED IN
5th COURT OF APPEALS
DALLAS, TEXAS
FOR THE FIFTH DISTRICT OF TEXAS 8/17/2022 6:53:36 AM
Claudia McCoy
AT DALLAS Clerk Pro Tem
LEE ROY CHANEY
APPELLANT
V.
THE STATE OF TEXAS
APPELLEE
CAUSE NUMBER: 05-22-00168-CR
ON APPEAL FROM CAUSE NUMBER: F20-39327
203RD DISTRICT COURT
OF DALLAS COUNTY, TEXAS
APPELLANT’S BRIEF
Allan Fishburn
State Bar Number 07049110
1910 Pacific Avenue
Suite 18800
Dallas, Texas 75201
(214) 761-9170
allanfishburn@yahoo.com
IDENTITY OF THE COURT, PARTIES AND COUNSEL
THE COURT
Honorable Rick Magnis, sitting by assignment
203rd District Court
Dallas County, Texas
PARTIES
LEE ROY CHANEY Appellant
THE STATE OF TEXAS State
COUNSEL
Mr. James Grossman
Assistant District Attorney Attorney for the State
Frank Crowley Courts Building
133 N. Riverfront Boulevard
Dallas, Texas 75207
Mr. Andrew Novak
Assistant District Attorney Attorney for the State
Frank Crowley Courts Building
133 N. Riverfront Boulevard
Dallas, Texas 75207
Mr. Steven Lafuente
2926 Maple Avenue Attorney for the Defendant
Suite 200
Dallas, Texas 75201
Mr. Allan Fishburn
1910 Pacific Avenue Attorney for Appellant
Suite 18800
Dallas, Texas 75201
2
TABLE OF CONTENTS
IDENTITY OF THE PARTIES 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 5
STATEMENT OF THE CASE 7
ISSUES PRESENTED 9
STATEMENT OF FACTS 10
POINT OF ERROR ONE
THE EVIDENCE IS INSUFFICIENT TO PROVE 28
APPELLANT KNEW AN INVESTIGATION WAS
IN PROGRESS
SUMMARY OF ARGUMENT 28
ARGUMENT 28
POINT OF ERROR TWO
THE EVIDENCE IS INSUFFICIENT TO PROVE 33
APPELLANT ALTERED, DESTROYED, OR
CONCEALED THE EVIDENCE IN QUESTION
SUMMARY OF ARGUMENT 33
ARGUMENT 33
PRAYER 38
3
CERTIFICATE OF COMPLIANCE 39
CERTIFICATE OF SERVICE 39
4
INDEX OF AUTHORITIES
CASES
Brooks v. State, 323 S.W. 3rd 893 30,34
(Tex. Crim. App. 2010)
Campbell v. State, 426 S.W. 3rd 780 34
(Tex. Crim. App. 2014)
Clayton v. State, 235 S.W. 3rd 772 30,34
(Tex. Crim. App. 2007)
Clinton v. State, 354 S.W. 3rd 795 36
(Tex. Crim App. 2011)
Cordova v. State, 698 S.W. 2d 107 31,35
(Tex. Crim. App. 1985)
Curry v. State, 30 S.W. 3rd 394 36
(Tex. Crim. App. 2000)
David v. State, PD-0307-21 37
(Tex. Crim. App. 2022)
Dean v. State, 449 S.W. 3rd 267 30,34
(Tex. App. – Tyler 2014)
Hooper v. State, 214 S.W. 3rd 9 30,31,34,35
(Tex. Crim. App. 2007)
Jackson v. Virginia, 443 U.S. 307 (1979) 30,34
Malik v. State, 953 S.W. 2d 234 30,31,35
(Tex. Crim. App. 1997)
5
Pannell v. State, 7 S.W. 3rd 222 31,32
(Tex. App. – Dallas 1999)
Ransier v. State, 594 S.W. 3rd 1 37
(Tex. App. – Houston [14th Dist.] 2019)
Spector v. State, 746 S.W. 2d 945 37
(Tex. App. – Austin 1988)
Stahmann v. State, 602 S.W. 3rd 573 36,38
(Tex. Crim. App. 2020)
Stewart v. State, 240 S.W. 3rd 872 29
(Tex. Crim. App. 2007)
Williams v. State, PD-0470-07 31,32
(Tex. Crim. App. 2008)
Williams v. State, 270 S.W. 3rd 140 36,37
(Tex. Crim. App. 2008)
Williamson v. State, 589 S.W. 3rd 292 30,34
(Tex. App – Texarkana 2019)
STATUTES
Tex. Govt. Code section 311.011 36
Tex. Penal Code section 6.03(a) 30
Tex. Penal Code section 6.03(b) 29
Tex. Penal Code section 37.09 29,33
Tex. Penal Code section 37.09(a)(1) 32
6
STATEMENT OF THE CASE
Appellant was charged with tampering with physical evidence by an indictment
which reads: In the name and by the authority of the State of Texas: The Grand Jury
of Dallas County, State of Texas, duly organized at the July Term, A.D., 2021 of
the 283rd Judicial District Court for said County, upon its oath do present in and to
said Court at said term, that Lee Chany, hereinafter called Defendant, on or about
the 14th day of September, 2020, in the County of Dallas, State of Texas, did
unlawfully, the and there, knowing that an investigation was in progress and an
official proceeding was pending, alter, destroy and conceal a record, document and
thing, to-wit: A substance purported to be methamphetamine with the intent to
impair its verity, legibility, and availability as evidence in said investigation and
official proceeding.
(C.R. p. 18)
A jury was selected and sworn. (R.R. Vol. 4, p. 1-67, Vol. 5, p. 12)
Appellant pled not guilty to the indictment. (R.R. Vol. 5, p. 14)
7
The jury found Appellant guilty of tampering with physical evidence. (R.R. Vol. 6,
p. 41)
The Trial Court set sentence at two years confinement. (R.R. Vol. 6, p. 100)
8
ISSUES PRESENTED
1. The evidence is insufficient to prove Appellant knew an investigation was
in progress.
2. The evidence is insufficient to prove Appellant altered, destroyed, or
concealed the evidence in question.
9
STATEMENT OF FACTS
Appellant was charged with tampering with physical evidence:
In the name and by the authority of the State of Texas: The
Grand Jury of Dallas County, State of Texas, duly organized at
the July Term, A.D., 2021 of the 283rd Judicial District Court
for said County, upon its oath do present in and to said Court at
said term, that Lee Chany, hereinafter called Defendant, on or
about the 14th day of September, 2020, in the County of
Dallas, State of Texas, did unlawfully, the and there, knowing
that an investigation was in progress and an official proceeding
was pending, alter, destroy and conceal a record, document and
thing, to-wit: A substance purported to be methamphetamine
with the intent to impair its verity, legibility, and availability as
evidence in said investigation and official proceeding.
(C.R. p. 18)
A jury was selected and sworn. (R.R. Vol. 4, p. 1-67, Vol. 5, p. 12)
Appellant pled not guilty to the indictment. (R.R. Vol. 5, p. 14)
Appellant also pled not guilty to a second indictment joined for trial which alleged
possession of a controlled substance. (R.R. Vol. 5, p. 13)
10
Officer Corbin Phillips testified he came into contact with Appellant on
September 14, 2020. (R.R. Vol. 5, p. 23)
The car in which Appellant was a passenger had “an expired registration that also
belonged to a different vehicle.” (R.R. Vol. 5, p. 24)
After pulling the car over Officer Phillips’s partner contacted the driver and Officer
Phillips handled Appellant. (R.R. Vol. 5, p. 24)
Officer Phillips testified that five to seven seconds elapsed from the time the car
was pulled over until he made contact with Appellant. (R.R. Vol. 5, p. 25)
State’s exhibit 1 is the recording of the event taken by the patrol car dash camera. It
was admitted without objection and published. (R.R. Vol. 5, p. 28)
As they were pulling over the car, Officer Phillips never saw the driver make any
gesture toward the passenger side of the car. (R.R. Vol. 5, p. 30)
When Officer Phillips first saw Appellant, he was holding a “large white styrofoam
11
cup.” (R.R. Vol. 5, p. 31)
There was also a cup in the other cup holder. (R.R. Vol. 5, p. 32)
As Phillips and Appellant were talking Appellant put his cup in the empty cup
holder. (R.R. Vol. 5, p. 33)
Officer Phillips’s partner got consent to search the car from the driver, so Officer
Phillips detained Appellant at the front of the squad car. (R.R. Vol. 5, p. 33)
A search of the car yielded the styrofoam cup which contained liquid, a baggie of
meth, meth in the liquid and a glass pipe. (R.R. Vol. 5, p. 34)
Officer Phillips testified he has never known anyone to drink methamphetamine.
(R.R. Vol. 5, p. 36)
Officer Phillips testified that methamphetamine is “not consumable when put into
liquid.” “It has to have heat to get the high.” (R.R. Vol. 5, p. 37)
12
State’s exhibit 2 is a recording taken by a body came worn camera. It was admitted
without objection. (R.R. Vol. 5, p. 39)
Appellant was arrested. Officer Phillips admonished him pursuant to article 38.22.
Appellant understood the admonitions. He waived his rights and agreed to respond
to questions. (R.R. Vol. 5, p. 43)
Appellant explained that the substance in the cup was his pain medication and that
the glass pipe was an incense burner. (R.R. Vol. 5, p. 44)
Officer Zachary Beauchamp came into contact with Appellant on September 14,
2020. (R.R. Vol. 5, p. 84)
Officer Beauchamp observed a car at the intersection West Main and West Beltline
in Lancaster. He conducted a license plate check. The registration was expired.
(R.R. Vol. 5, p. 85)
Officer Beauchamp pulled the car over. A woman was driving. She had a suspended
driver’s license. (R.R. Vol. 5, p. 88)
13
The driver was not given a ticket. Officer Beauchamp did decide to impound the
car. (R.R. Vol. 5, p 89)
Officer Beauchamp got consent to search the car from the driver. When he opened
the cup in the passenger side cup holder he saw “a red liquid inside and then there
was a plastic baggie that contained a crystal substance…and a glass pipe.” (R.R.
Vol. 5, p. 90-91)
Officer Beauchamp testified he has never known methamphetamine to be ingested
with soda pop. (R.R. Vol. 5, p. 95)
Officer Beauchamp testified that putting methamphetamine into soda pop would be
to “destroy it or hide it.” (R.R. Vol. 5, p. 96)
Officer Beachamp weighed the cup and its contents. It added up to 576 grams.
(R.R. Vol. 5, p. 104)
Officer’s Beauchamp’s body cam recording of the event was admitted without
objection as State’s exhibit 6. (R.R. Vol. 5, p. 108)
14
Officer Beauchamp was asked how much methamphetamine could fit into the
baggie in question. He answered: “I’ve seen…it’s hard to say, but you can say
that…If I had to guess, ten grams or less.” (R.R. Vol. 5, p. 113)
Officer Beauchamp testified that the baggie floating in the cup could have held
more than four grams of methamphetamine. (R.R. Vol. 5, p. 114)
Officer Beauchamp was asked what the “floating crystals in that substance were.”
He answered, “methamphetamine.” (R.R. Vol. 5, p. 115)
On cross-examination Officer Beauchamp admitted he did not see who put the
methamphetamine and the pipe in the cup. (R.R. Vol. 5, p. 125)
There was methamphetamine found inside the baggie. (R.R. Vol. 5, p. 128)
Officer Beauchamp testified that methamphetamine can be consumed as a liquid.
(R.R. Vol. 5, p. 141)
15
Richard Garcia works at the crime lab. (R.R. Vol. 5, p. 148)
Garcia described how he analyzed the liquid:
So, I did a preliminary testing on the liquid itself and then after
I have a…I'll tab like a test tube, so I pipetted some liquid into
a test tube to be put in a performed confirmatory testing on it.
(R.R. Vol 5, p. 164
Garcia described the “confirmatory” test:
I used the thing called the gas chromatograph mass
spectrometer, and they refer to it as a GCMS. I can briefly
explain how that works.
The gas chromatograph is a separation technique. When a
sample is introduced into this column…you can think of it kind
of like a race. If all of the runners in the beginning of the race
start at the same time, they may all finish at different times
based on how fast or slow they are.
So, after they are done on the gas chromatograph, the
compound enters the mass spectrometer and the mass
spectrometer the compound gets bombarded by electrons. This
causes the compound to breakdown in fragments. I kind of
think of this like a puzzle. If you had a completed puzzle and it
fell on the floor into a bunch of puzzle pieces, this frag-
mentation pattern allows us to identify what a compound is.
(R.R. Vol. 5, p. 165-166)
16
The confirmatory test showed the sample contained methamphetamine. (R.R. Vol.
5, p. 166)
Garcia’s report was admitted without objection as State’s exhibit 14. (R.R. Vol. 5,
p. 168)
The liquid weighed 508.28 grams. (R.R. Vol. 5, p. 172)
On cross-examination Garcia testified he did “not determine the purity” of the
methamphetamine contained in the liquid. (R.R. Vol. 5, p. 176)
Garcia testified that putting methamphetamine into the liquid did not destroy the
methamphetamine. (R.R. Vol. 5, p. 182)
The State rested. (R.R. Vol. 5, p. 192)
Appellant moved for a directed verdict. The following colloquy took place:
THE COURT: All right. We're outside the presence of the jury.
The State has rested. What says the Defense?
17
MR. LAFUENTE: At this time the Defense is going to move
for an Instructed Verdict on a couple of reasons. The first one,
of course, is the obvious one, is the Fourth Amendment. I
anticipate my client is going to attempt to raise the fact to
speak. But with Your Honor's consideration, I submit to the
Court that at the time of the arrest…mainly the arrest was made
in a split second. There's…in my mind there's no way that he
could tell exactly what it was that he was looking at. He didn't
testify that he had any prior contacts with my client. That's not
on this record right now. And we don't have the testimony of
the female that was on the scene. She didn't bother to come
down here and testify as to anything she may or may not have
told the officer.
So in my way of thinking my officer didn't have probable cause
to arrest my client at the time that he chose to arrest him and,
therefore, we move the Court to suppress the evidence against
him.
The other issue…and this is probably the more nuanced issue,
the more pretty important issue in my mind, Your Honor,
because I was reading the case of Seals v. State. And for the
record that is 187 S.W.3d, 417 Texas Court of Criminal
Appeals 2005. In that case the Court of Appeals is dealing with
the issue of adulterants and dilutants specifically the change in
the law. Because before Seals, we labored under the Cawthon
case and that case is back in the old days under Cawthon. The
State had to prove that the substance was introduced with the
intent to increase the bulk or quantity of quantity of the
controlled substance. That's what an adulterant or dilutant had
to be and the legislature changed that definition, I think, in '94.
I'm not sure exactly what year that they did, but they changed
it. And in Seal the Court considered that issue and they found
that, well, a literal reading of the statute they got rid of the
intent to increase language and added any material that
increases. So in that case they basically found that on that
record, okay, that there was no issue, there's no requirement
18
that the State prove the intent to increase. However, and I want
to read this into the record and specifically according to Judge
Womack's concurring opinion because it's most telling. It says
…I'm sorry. The wrong spot.
THE COURT: Can you send a copy of that to the
State and the clerk?
MR. LAFUENTE: The…
THE COURT: This case.
MR. LAFUENTE: The Seals case? Yes, sir. I will absolutely
do that.
Well, the most important issue, Your Honor, what Judge
Womack is taking issue with is…and I'm just going to
paraphrase it rather than read it. Judge Womack is saying, look.
They are all sharing the same opinion that when we get into the
situation where you take a situation like what we have before
this court where you're introducing a small amount of
methamphetamines that can just be exploded into a first-degree
felony with a minimum ten-year sentence, right, it becomes
questions of fundamental fairness under the due process clause.
And on this record they didn't find that there was a
constitutional issue, but that's because nobody made a
constitutional issue out of it which is what I'm trying to do
here.
On this record, Your Honor, before this court we have a couple
of due process problems. Number one, we have this issue of
whether, as applied to my client according to the subject to do
with due process is this a fundamental fair interpretation of the
law to hold him accountable for over 400 grams of
methamphetamines in a liquid that's all Big Red and we have
no idea how my minute the methamphetamines in the the
baggie was. That's one issue. But when you compound that
19
with the other problems that we have is the way that this
prosecution is being unfolded.
Here we have a situation where the State gets to double dip.
We get to argue on the one hand that you exploded your range
of punishment by adding…or dumping a small amount of
methamphetamines into this big liquid of Big Red only if the
jury doesn't believe that. But at the same time, okay, fine, you
destroyed it. Those are counter-building concepts, Judge, and I
would ask the Court to instruct the jury to find him not guilty
for those reasons.
MR. GROSSMAN: Would Your Honor like a response from
the State?
THE COURT: I would.
MR. GROSSMAN: Okay. So seeing how nothing has been
filed and we've given no notice as to this argument before
especially in terms of the unconstitutional analysis for an
argument for…I'm assuming it is to drop the charges or to
dismiss this case.
MR. LAFUENTE: (Nods head).
MR. GROSSMAN: Okay. I first would like to take into effect
of what we, the State, are required to prove and that's
possession on or about a certain day that the defendant
knowingly possessed care, custody and control of a controlled
substance of methamphetamine in an amount greater than 400
grams.
On the flip side, and I believe this is what the argument was
from Defense was, that at the same exact time you can't just
add something and also call it a tamper. Right? You can't
destroy it. Well, the law on tamper isn't just destruction, Your
Honor, it's alter or conceal a document, record, or thing.
20
Methamphetamine, which we have proven and to this Court, is
typically a crystalline-like material. It can be liquid. It can. But
typically, and what the officer saw was its originated state of
solid, of crystalline-like material. How convenient is it to try to
hide that crystal in a material that could dissolve it so an officer
could not see it. Take away the fact that if there was no baggie,
that there was no pipe and it was just a solid crystalline
substance dissolving, an officer at that point would have no
way of knowing that that rock which is now turning into a
whole other substance being concealed, or being altered, is in
fact an illegal controlled substance.
THE COURT: Here's the concern I have. An adulterant or
dilutant means any material that increases the bulk or quantity
of a controlled substance. We all agree that's straight out of the
statute.
MR. GROSSMAN: That's correct.
THE COURT: But then you're saying he committed another
separate act. The same act that he committed did increase the
bulk…the same act, putting it in a liquid…also served to
decrease, or hide, or destroy the bulk.
MR. GROSSMAN: That is correct, Your Honor.
THE COURT: And I think that, that's fundamentally unfair.
MR. GROSSMAN: Yet the law allows it, Your Honor.
THE COURT: Pardon?
MR. GROSSMAN: Yet -- duly noted, and respectfully duly
noted, Your Honor. Yet, for whatever reason…
THE COURT: The same act that increases the punishment
range also creates a separate offense of destroying the property.
21
MR. NOVAK: And that's why we intend to include the lesser
includers all the way down to under a gram in the jury charge.
Because we believe we've proven the top charge and we're
going to include all the rest of the lesser includers because we
think there's evidence all the way down.
THE COURT: And that that was what I was going to ask you
to do.
MR. GROSSMAN: Yes, Your Honor. And just for the record
and for the Defense purposes, part of the reason why we asked
about can you hide this amount of drugs in this bag is so that
we needed to produce some sort of evidence, any evidence, that
there could be a lesser included amount. And it's, in all fairness
to be able to answer the call of fairness to the Judge, we are
including all of the lesser includers.
THE COURT: All in fairness to the judge would be that I
instruct you add four grams or not anything greater than four
grams.
MR. NOVAK: We're in a situation because the defendant put
us in this situation by dumping the amount into…
THE COURT: Right. But you charge him one or you charge
him the other, but the same act…you're trying to say that an act
that increases his culpability is also an act that is suppose to
hide, and that's why we have the separate offense.
MR. GROSSMAN: You're right, Your Honor. However, if the
legislature who wrote all of this out thought in the same, they
would have barred it, there would have been an exception. And
I understand it. I totally understand it. And that is maybe for
the Court, but that is not the greatest answer in the world that
appeases the Court's conscious. But that is the truth and that is
what we have at this moment.
22
THE COURT: Right.
MR. GROSSMAN: For the constitutional analysis or the
constitutional argument at this rate nothing codified within the
State's powers states that we can't do that.
THE COURT: I'm going to give the State two choices here
because I really want this to be fair for both sides. You can
dismiss the tampering and go with full amount, including the
lesser includers, or we can clear the tampering. But then I'm
taking it down…I'm instructing not anything more than four
grams.
MR. NOVAK: I think that's fair, Judge, to do both charges, but
instructing not anything more than four grams.
THE COURT: Pardon?
MR. GROSSMAN: If you will allow us to remain with the four
grams…four to 200 and anything less and instruct out anything
higher, I think that's fair.
THE COURT: Yes. Okay. So you want to keep the tampering.
MR. GROSSMAN: Keep the tampering along with the
possession of four to 200 and less.
THE COURT: Okay. And then do you want to talk to your
client again about whether he wishes to testify.
MR. LAFUENTE: Yes, sir, I do, Your Honor. For the record, I
want to be clear because I don't want to leave anything to
chance given the gravamen and the severity of the offense.
Now, at less than four grams where are we?
THE COURT: Two to four grams is a third degree enhanced to
a second degree. One to four grams is a state jail and there's no
23
enhancement because you don't have an aggravated conviction.
MR. GROSSMAN: He did five to life.
MR. LAFUENTE: Less than a gram is state jail. One to four
is….
THE COURT: A third degree enhanced to a second degree if
they believe the paragraph is true.
MR. LAFUENTE: So it's two to twenty.
THE COURT: Two to twenty. That's correct.
MR. NOVAK: Possession of over four grams is two to 20 and
there will be an enhancement later.
MR. GROSSMAN: But we're talking right now just because
it's technically it's a third versus a second degree.
THE COURT: Correct.
MR. LAFUENTE: With the enhancement.
MR. NOVAK: No.
MR. LAFUENTE: I'm so confused.
MR. GROSSMAN: Later it could become a five to life.
THE COURT: They're not dismissing the tampering.
MR. LAFUENTE: Right. I understand that.
THE COURT: I'm not instructing anything more than four
grams.
24
MR. LAFUENTE: Right.
THE COURT: So they're going to be charged on either a state
jail felony and a third-degree felony.
MR. LAFUENTE: Right.
THE COURT: And they're going to have a choice of those two
or a not guilty. So if it's a state jail felony there's no
enhancement because then they need two…
MR. NOVAK: Because he did say anything up to ten grams in
that little bag. He did testify it could be anything up to ten
grams or less. So we do have it as four to 200.
MR. GROSSMAN: That's what my understanding was. My
understanding was it would be at least a second. The highest it
could possibly be would be a second degree possession of four
to 200.
THE COURT: Yeah, he's right. It did say ten grams. So I'm
striking out anything more than 200 grams. So it's going to
be…they are going to be charged on either less than a gram,
one to four grams, or four to 200 grams. If they get the four to
that's a second degree enhanced to a first-degree with a
paragraph. Correct?
MR. GROSSMAN: Correct.
MR. LAFUENTE: But that's still going to be five to 99. It
wouldn't be a minimum of ten.
MR. GROSSMAN: Correct.
THE COURT: It would be five to 99 if they prove the
paragraph.
25
MR. GROSSMAN: Correct. And if I may add just for the
record because it was indicted as greater than 400 grams there
also has to be a mandatory fine assessed. That's part of the
code. If it's less than 400 grams there's no mandatory fine. I just
wanted to add that for the record.
(R.R. Vol. 5, p. 192-203)
Appellant requested an instruction on “38.23.” He argued that his cross-
examination raised a fact issue as to whether there was probable cause to arrest
Appellant. (R.R. Vol. 6, p. 5-8)
The request was denied. (R.R. Vol. 6, p. 8)
Appellant rested and both sides closed. (R.R. Vol. 6, p. 9)
The jury found Appellant guilty of tampering with physical evidence. (R.R. Vol. 6,
p. 41)
Appellant pled true to the existence of a prior felony conviction. (R.R. Vol. 6, p.
46)
26
Eddie Lopez is an investigator. (R.R. Vol. 6, p. 47)
Mr. Lopez photographed Appellant’s tattoos. (R.R. Vol. 6, p. 50)
Mr. Lopez testified Appellant had some Tango Blast tattoos. (R.R. Vol. 6, p. 56)
State’s exhibit 36 and 37, which show Appellant’s federal conviction, were
admitted without objection. (R.R. Vol. 6, p. 62-63)
The State rested. (R.R. Vol. 6, p. 63)
Appellant testified he successfully completed drug programs in prison. (R.R. Vol.
6, p. 67)
Appellant testified he has never been in a gang. (R.R. Vol. 6, p. 69)
Appellant rested. The State rested and both sides closed. (R.R. Vol. 6, p. 94)
The Trial Court set sentence at two years confinement. (R.R. Vol. 6, p. 100)
27
POINT OF ERROR ONE
THE EVIDENCE IS INSUFFICIENT TO PROVE APPELLANT
KNEW AN INVESTIGATION WAS IN PROGRESS
SUMMARY OF ARGUMENT
Appellant was a passenger in a car pulled over for a traffic violation. There is no
evidence that Appellant knew there was a drug investigation going on when he put
his methamphetamine and pipe in his cup of Big Red.
ARGUMENT
Appellant was charged with tampering with physical evidence by an indictment
which reads:
In the name and by the authority of the State of Texas: The
Grand Jury of Dallas County, State of Texas, duly organized at
the July Term, A.D., 2021 of the 283rd Judicial District Court
for said County, upon its oath do present in and to said Court at
said term, that Lee Chany, hereinafter called Defendant, on or
about the 14th day of September, 2020, in the County of
Dallas, State of Texas, did unlawfully, the and there, knowing
that an investigation was in progress and an official proceeding
28
was pending, alter, destroy and conceal a record, document and
thing, to-wit: A substance purported to be methamphetamine
with the intent to impair its verity, legibility, and availability as
evidence in said investigation and official proceeding.
Tampering is proscribed by Tex. Penal Code section 37.09 which reads in relevant
part:
(a) A person commits an offense if, knowing that an
investigation…is…in progress, he;
(1) alters, destroys, or conceals…any thing with intent to impair
its verity…or availability as evidence in the investigation….
Thus, there are three elements the State must prove:
(1) knowing that an investigation is in progress;
(2) the actor alters, destroys or conceals the tangible;
(3) with the intent to impair its availability.
These three elements include two different culpable mental states-knowledge and
intent. Stewart v. State, 240 S.W. 3rd 872, 874 (Tex. Crim. App. 2007). The statute
requires the knowledge of an investigation and the intent to impair the thing’s
availability as evidence.
“A person acts knowingly, or with knowledge, with respect…to circumstances
surrounding his conduct when he is aware …that the circumstances exist.” Tex.
Penal Code section 6.03(b). “A person acts intentionally, or with intent with
29
respect…to a result of his conduct when it is his conscious objective or desire
to…cause the result.” Tex. Penal Code section 6.03(a).
In assessing the legal sufficiency of the evidence, the reviewing court considers
all of the evidence in the light most favorable to the verdict to determine whether a
rational tier of fact could have found the essential elements of the offense beyond a
reasonable doubt.” Dean v. State, 449 S.W. 3rd 267, 268 (Tex. App. – Tyler 2014);
See, Williamson v. State, 589 S.W. 3rd 292, 297 (Tex. App – Texarkana 2019)
(citing Brooks v. State, 323 S.W. 3rd 893, 912 (Tex. Crim. App. 2010) (plurality
op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979). “Our rigorous [legal
sufficiency] review focuses on the quality of the evidence presented.”
Williamson, 589 S.W. 3rd at 297 (citing Brooks, 323 S.W. 3rd at 917-918
(Cochran, J. concurring)). “We examine legal sufficiency under the direction of the
Brooks opinion, while giving deference to the responsibility to the jury to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Id. (quoting Hooper v. State, 214
S.W. 3rd 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318 – 319;
Clayton v. State, 235 S.W. 3rd 772, 778 (Tex. Crim. App. 2007).
“Legal sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge.” Id. at 298 (quoting Malik v. State,
30
953 S.W. 2d 234, 240 (Tex. Crim. App. 1997). “The hypothetically correct jury
charge is one that accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried.” Id. (quoting Malik, 953 S.W. 2d at 240).
“In our review, we consider events occurring before, during, and after the
commission of the offense and may rely on actions of the defendant which show an
understanding and common design to do the prohibited act. Id. at 297 (quoting
Hooper, 214 S.W. 3rd at 13 (quoting Cordova v. State, 698 S.W. 2d 107, 111 (Tex.
Crim. App. 1985)). “It is not required that each fact point directly and
independently to the guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.” Id. (quoting
Hooper, 214 S.W. 3rd at 13).
Appellant challenges the sufficiency of the evidence establishing his knowledge
that the contraband in his Big Red cup was evidence in the criminal investigation
that was in progress related to possession of a controlled substance or paraphernalia.
See, Williams v. State, PD-0470-07 (Tex. Crim. App. 2008); Pannell v. State, 7
S.W. 3rd 222 (Tex. App. – Dallas 1999). In Pannell, this Court acquitted Mr.
Pannell who threw marijuana out of a car window during a traffic investigation
31
concluding that section 37.09(a)(1) required the defendant to “be aware that the
thing he altered, destroyed, or concealed was evidence in the investigation as it
existed at the time of the altercation, destruction, or concealment.” Id., at 223. This
Court reasoned there was no investigation, pending, or in progress, in which the
marijuana could have served as evidence. Id., at 244.
In the present case the State proved the existence of a traffic investigation. Both
officers testified that they were not conducting a drug investigation at the time of
the event. Both denied placing the driver and Appellant under surveillance prior to
the traffic stop. Both officers testified the car was pulled over for objective reason
of a traffic violation and that no subjective reason was involved.
As pointed out in Williams, “the cases following Pannell have similarly analyzed
events leading up to alteration, destruction, or concealment of evidence in order to
classify the investigation. This effort makes sense when the indictment does not
specifically allege the type of investigation in progress.” Id.. The indictment in the
present case is likewise unspecific. Moreover, the State failed to prove an
investigation was taking place beyond a traffic violation.
Because there is no evidence that Appellant knew he was personally being
investigated at the time he put the contraband in the cup, the evidence fails on the
element of knowledge.
32
POINT OF ERROR TWO
THE EVIDENCE IS INSUFFICIENT TO PROVE APPELLANT
ALTERED, DESTROYED, OR CONCEALED THE
EVIDENCE IN QUESTION
SUMMARY OF ARGUMENT
The chemist testified the methamphetamine wasn’t destroyed. The
methamphetamine wasn’t altered by immersion, and the methamphetamine was
visible in the cup of Big Red and thus not concealed.
ARGUMENT
Appellant was charged by indictment with tampering with physical evidence.
Tex. Penal Code section 37.09. He pled not guilty. The case was tried to a jury at
guilt/innocence. Appellant argues that the evidence is insufficient to prove any of
the three manners and means alleged in the indictment.
The indictment in the present case alleged Appellant altered, destroyed, or
33
concealed the evidence. The jury charge authorized conviction on all three theories
of liability. When such is the case, a conviction can be sustained upon proof of any
of the three theories. Campbell v. State, 426 S.W. 3rd 780, 786 (Tex. Crim. App.
2014).
In assessing the legal sufficiency of the evidence, the reviewing court considers
all of the evidence in the light most favorable to the verdict to determine whether a
rational tier of fact could have found the essential elements of the offense beyond a
reasonable doubt.” Dean v. State, 449 S.W. 3rd 267, 268 (Tex. App. – Tyler 2014);
See, Williamson v. State, 589 S.W. 3rd 292, 297 (Tex. App – Texarkana 2019)
(citing Brooks v. State, 323 S.W. 3rd 893, 912 (Tex. Crim. App. 2010) (plurality
op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979). “Our rigorous [legal
sufficiency] review focuses on the quality of the evidence presented.”
Williamson, 589 S.W. 3rd at 297 (citing Brooks, 323 S.W. 3rd at 917-918
(Cochran, J. concurring)). “We examine legal sufficiency under the direction of the
Brooks opinion, while giving deference to the responsibility to the jury to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Id. (quoting Hooper v. State, 214
S.W. 3rd 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318 – 319;
Clayton v. State, 235 S.W. 3rd 772, 778 (Tex. Crim. App. 2007).
34
“Legal sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge.” Id. at 298 (quoting Malik v. State,
953 S.W. 2d 234, 240 (Tex. Crim. App. 1997). “The hypothetically correct jury
charge is one that accurately sets out the law, is authorized by the indictment, does
not unnecessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried.” Id. (quoting Malik, 953 S.W. 2d at 240).
“In our review, we consider events occurring before, during, and after the
commission of the offense and may rely on actions of the defendant which show an
understanding and common design to do the prohibited act. Id. at 297 (quoting
Hooper, 214 S.W. 3rd at 13 (quoting Cordova v. State, 698 S.W. 2d 107, 111 (Tex.
Crim. App. 1985)). “It is not required that each fact point directly and
independently to the guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.” Id. (quoting
Hooper, 214 S.W. 3rd at 13).
To determine whether the evidence is sufficient the evidence adduced at trial is
compared to “the essential elements of the offense as defined by the hypothetically
correct jury.” Malik v. State, 933 S.W. 2d 234, 240 (Tex. Crim. App. 1997). The
hypothetically correct jury charge is one that “accurately sets out the law, is
35
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried.” Id. The “law as
authorized by the indictment includes the statutory elements of the offense and
those elements as modified by the indictment Curry v. State, 30 S.W. 3rd 394, 404
(Tex. Crim. App. 2000).
In the present case the jury charge is erroneous. It contains a “Definitions”
section that purports to define terms not defined by statute. These terms are alter,
destroy, conceal, and verity. The correct charge would have contained no
definitions of these terms.
None of these terms- “alters, destroys, or conceals”- is defined in the statute.
When not particularly defined by statute, words are to be given the meaning found
in their “common usage.” Tex. Govt. Code section 311.011. “Jurors may freely read
statutory language to have any meaning which is acceptable in common parlance.”
Clinton v. State, 354 S.W. 3rd 795, 800 (Tex. Crim App. 2011).
Alter “means that the defendant changed or modified the thing itself.” Stahmann
v. State, 603 S.W. 3rd 573, 579 (Tex. Crim. App. 2020). The word can mean “to
change; make different; modify.” Williams v. State, 270 S.W. 3rd 140, 146 (Tex.
Crim. App. 2008). Or, alter can mean “to make different without changing into
36
something else” and “to make different in some particular, as size, style, course, or
the like, modify.” Ransier v. State, 594 S.W. 3rd 1, 12 (Tex. App. – Houston [14th
Dist.] 2019). “The common thread among the definitions is that alter has an
expansive meaning in common usage.” David v. State, PD-0307-21 (Tex. Crim.
App. 2022).
In the present case there is no evidence that putting the methamphetamine in the
Big Red altered it. The methamphetamine could have been snorted, smoked,
injected or drunk to the same, or similar intoxicating effect. If the hypothetical meth
addict were handed an ice-cold Big red and told there was nearly a gram of meth
dissolved in it, she would have happily drunk it. Obviously, the drug was not altered
by immersion in liquid.
Destroy means the thing “has been ruined or rendered useless.” Williams v.
State, 270 S.W. 3rd 140, 146 (Tex. Crim. App. 2008). A thing is destroyed when it
has lost its identity and is no longer useful. Spector v. State, 746 S.W. 2d 945, 945-
946 (Tex. App. – Austin 1988). The evidence in the present case showed the meth
wasn’t altered, an therefore not destroyed. Moreover, witness Beauchamp testified
crystals were observed on or in the liquid. And, Chemist Garcia testified that
putting the methamphetamine in the liquid did not destroy it.
Conceal “requires a showing that the allegedly concealed item was hidden,
37
removed from sight or notice, or kept from discovery or observation.” Stahmann v.
State, 603 S.W. 3rd 573, 581 (Tex. Crim. App. 2020). In Stahmann, Mr. Stahmann
wrecked his car. As officers stopped to render aid Stahmann threw something over
a game fence which landed on top of the grass two or three feet away. It was a
bottle of prescription medicine. The Court of Criminal Appeals held the evidence
was insufficient to prove Stahmann had tampered with evidence by concealing it.
The Court stated: “While a rational jury could have reasonably inferred that
Stahmann intended to conceal the pill bottle when he threw it over the wire fence,
the evidence shows he failed to conceal it as he intended because the bottle landed
short of the bush in plain view on top of some grass. In the present case the
evidence shows Appellant intended to conceal the methamphetamine, but he failed
to do so because it was still floating in his Big Red when observed as the result
Officer Beauchamp’s warrantless unobjected to search. The evidence is insufficient
to prove tampering by concealment.
PRAYER
WHEREFORE Premises Considered, Appellant prays that this Honorable Court
reverse and acquit or remand this cause to the Trial Court for further proceedings.
38
Respectfully submitted:
/s/ Allan Fishburn
Allan Fishburn
State Bar Number: 07049110
1910 Pacific Avenue, Suite 18800
Dallas, Texas 75201
Telephone (214) 761-9170
allanfishburn@yahoo.com
CERTIFICATE OF COMPLIANCE
I hereby certify the foregoing document contains 6,773 words.
/s/ AllanFishburn
Allan Fishburn
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief was e-served to
dcdaappeals@dallascounty.org on this the 17th day of August 2022.
/s/ AllanFishburn
Allan Fishburn
39
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Debbie Brock on behalf of Allan Fishburn
Bar No. 07049110
lawoffice1910@yahoo.com
Envelope ID: 67367386
Status as of 8/17/2022 8:46 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Dallas Appeals dcdaappeals@dallascounty.org 8/17/2022 6:53:36 AM SENT