Opinion filed October 30, 2020
In The
Eleventh Court of Appeals
__________
No. 11-18-00270-CR
__________
GRETCHEN DAWN DENNY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 11797-D
OPINION
A jury convicted Appellant, Gretchen Dawn Denny, of the third-degree felony
offense of tampering with physical evidence. See TEX. PENAL CODE
ANN. § 37.09(a)(1), (c) (West 2016). The trial court sentenced Appellant to six
years’ confinement in the Correctional Institutions Division of the Texas Department
of Criminal Justice, with the sentence suspended and community supervision
imposed for six years. Appellant presents four issues for review, arguing that (1) the
evidence was insufficient to support the conviction, (2) the trial court erred in
denying Appellant’s motion to dismiss the indictment, (3) the trial court erred in
allowing a witness to testify in violation of Rule 614 of the Texas Rules of Evidence,
and (4) the trial court erred in allowing the prosecution to call a rebuttal witness for
the sole purpose of impeachment. We reverse the judgment of the trial court and
render a judgment of acquittal.
I. Background Facts
Appellant was an investigations program director at the Abilene office of the
Texas Department of Family and Protective Services (CPS). Appellant’s conviction
arises from her instruction to a subordinate with respect to the disposition of an
electronic copy of a photograph.
In August of 2012, CPS opened an investigation into the Klapheke family
following the death of a child. Rebecca Tapia, the on-call CPS investigator, received
an “after-hours” call notifying her that Emergency Medical Services (EMS) had
taken an unresponsive child to Abilene Regional Medical Center and that two
additional children remained in the home on Dyess Air Force Base (Dyess). Tapia
notified Josh Pruitt, the on-call CPS supervisor, by phone. Barbara McDaniel,
another CPS supervisor, informed Tapia that the child was pronounced dead at the
hospital.
As Tapia prepared to leave the office to tend to the other children, several
events happened in rapid succession. McDaniel received a photograph of the
deceased child from Sergeant Lynn Beard of the Abilene Police Department (APD).
McDaniel sent the photograph to Appellant via text and showed the photograph to
Tapia to prepare Tapia for the severity of the case. McDaniel also showed the
photograph to Lindsay Morris, Tapia’s supervisor at CPS. Tapia learned that
Claudia Gonzalez, another CPS investigator who had just been promoted to
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investigation supervisor, had closed an investigation into the Klapheke family six
days earlier.
Tapia and another CPS investigator left the office to respond to the other
children at Dyess. A staff sergeant on the base granted Tapia permission to enter the
Klapheke home. Once inside, Tapia assessed that the children were in critical
condition; she put both children in the car to take them to Hendrick Medical Center
(HMC). As the medical staff treated the children, Tapia let a nurse know about the
deceased sibling. Tapia told the nurse that the deceased child had a similar injury
that looked like it could be a chemical burn. Hoping that the photograph would help
the medical staff diagnose and treat the two children, Tapia texted McDaniel: “Will
you please fwd me the pic that Lynn sent you[?] Nurse would like to see it.”
Rather than send the photograph immediately to Tapia, McDaniel contacted
Appellant to ask if she could forward the photograph to Tapia. Their text exchange
is as follows:
MCDANIEL: [Tapia] text me wanting me to send the pic of the
baby to her saying a nurse at hmc wants to see it.
APPELLANT: No
MCDANIEL: Though [sic] so
MCDANIEL: Thought
APPELLANT: Say u delete it
MCDANIEL: Ok
APPELLANT: And delete it.
Appellant further directed McDaniel to inquire about the nurse and the need for the
photograph. Although McDaniel never sent the photograph to Tapia, APD
Detective Frank Shoemaker, who was at the hospital with Tapia, was able to get it
from Sergeant Beard—the photograph remained in the APD’s custody at all times.
Appellant stated in her police interview that she followed up with Sergeant Beard by
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phone after her conversation with McDaniel to clarify the situation and knew that
Detective Shoemaker received the photograph from Sergeant Beard.
II. Analysis
A. Sufficiency of the Evidence
We review a challenge to the sufficiency of the evidence under the standard
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010). Evidence is sufficient to support a criminal
conviction if a rational jury could find each essential element of the offense beyond
a reasonable doubt. Jackson, 443 U.S. at 319. Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict. Id.
When conducting a sufficiency review, we consider all of the evidence
admitted at trial, including evidence that may have been improperly admitted.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury as the sole factfinder;
when the record supports conflicting inferences, we presume that the jury resolved
the conflicts in favor of the verdict and defer to that finding. Jackson, 443 U.S. at
326.
Evidence does not need to directly prove a defendant’s guilt; direct and
circumstantial evidence are both probative of guilt, and we review all of the evidence
to determine the “combined and cumulative force.” Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007) (quoting Barnes v. State, 876 S.W.2d 316, 321 (Tex.
Crim. App. 1994)). Finally, the sufficiency of the evidence is measured by the
“elements of the offense [as] defined by the hypothetically correct jury charge.”
Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009).
A person commits the offense of tampering with evidence if “knowing that an
investigation or official proceeding is pending or in progress, [she] . . . alters,
destroys, or conceals any record, document, or thing with intent to impair its verity,
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legibility, or availability as evidence in the investigation.” PENAL § 37.09(a)(1).
This statute requires proof of three elements: the defendant (1) knew about an
investigation in progress; (2) altered, concealed, or destroyed a thing; and
(3) intended to impair the use of that thing as evidence. Appellant does not contest
element one.
In Appellant’s first issue, she argues that the evidence was insufficient to show
that she concealed the photograph in question. The State alleged, in its amended
indictment, that Appellant:
knowing that an investigation was in progress . . . intentionally and
knowingly conceal[ed] a record, document, or thing, to wit: a
photograph or image of deceased child [T.K.], by directing other Child
Protective Services personnel to refuse to provide said record,
document, or thing to other individuals involved in said investigation,
with intent to impair its availability as evidence in the investigation.
Appellant’s sufficiency challenge is three pronged: Appellant (1) challenges the jury
charge, (2) argues that she did not conceal the photograph, and (3) argues that she
did not possess the requisite intent.
1. Jury Charge
First, Appellant argues that the jury charge did not provide an instruction on
the “law of parties,” which allows a jury to hold a party criminally responsible for
an offense committed “by the conduct of another if . . . acting with intent to promote
or assist the commission of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense.” PENAL § 7.02(a)(2) (West
2011). Appellant argues that no evidence exists that Appellant herself concealed the
photograph and, therefore, that the evidence was insufficient to convict her as a
principle to the offense.
In Malik, the Court of Criminal Appeals held that the sufficiency of the
evidence is measured by the hypothetically correct jury charge, which ensures that
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a judgment of acquittal is reserved for cases where the State has failed to prove the
crime charged, not cases where the “defendant received a windfall in the jury
instructions.” Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997). In
Howard, the Austin Court of Appeals applied Malik to similar facts. Howard v.
State, 966 S.W.2d 821 (Tex. App.—Austin 1998, pet. ref’d). In that case, the State
charged the defendant with attempted murder, but the jury charge did not refer to the
law of parties in the application paragraph. Id. at 824. There, the court found that
the trial court’s failure to expressly authorize a conviction as a party did not require
the reviewing court to disregard the law of parties upon review. Id. Instead, the
court measured the sufficiency of the evidence by the hypothetically correct jury
charge, one which properly applied the law of parties to the facts. Id.
Here, the application section of the jury charge did not properly instruct the
jury on the law of parties. However, the amended indictment charges, and the
“accusation section” of the jury charge includes, that Appellant concealed “by
directing” a CPS worker to conceal the photograph. Section 7.02(a)(2) of the Penal
Code specifically authorizes a finding of criminal responsibility when a person
“directs . . . [an]other person to commit the offense.” Therefore, a hypothetically
correct jury charge, as authorized by the amended indictment, would have instructed
the jury to find Appellant guilty if (1) knowing an investigation was in progress,
(2) Appellant concealed a photograph by directing CPS personnel to refuse to
provide the photograph, (3) with the intent to impair its availability as evidence in
an investigation. We will review the sufficiency of the evidence using this
hypothetically correct charge.
2. Concealment
Appellant next argues that the evidence was insufficient to prove that the
photograph was ever concealed. Appellant contends that, because the photograph
originated with the APD, Appellant could not conceal evidence that the APD already
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possessed. The State argues that it only needed to show that “Appellant intended to
impair the availability of the photograph as evidence, not that its unavailability as
evidence was actually accomplished.” In the alternative, the State argues that
the photograph was actually concealed because Appellant’s actions kept
Detective Shoemaker from viewing it at the hospital.
The Court of Criminal Appeals has now explicitly rejected the State’s primary
argument. See Stahmann v. State, 602 S.W.3d 573 (Tex. Crim. App. 2020). We
note that the Stahmann opinion was issued after Appellant was tried and convicted
and after both parties had filed their briefs in this appeal. In Stahmann, the appellant
challenged his conviction for tampering with evidence, arguing in part that the
evidence was insufficient to support his conviction. Id. at 575. Stahmann was
involved in an automobile accident, and witnesses testified that he immediately
exited his vehicle and threw a pill bottle over a wire fence before law enforcement
arrived. Id. The bottle remained visible through the fence, and witnesses
immediately alerted law enforcement to its presence. Id. The investigating officer
testified that he could see the pill bottle through the fence and that the officers were
eventually able to retrieve the bottle. See Stahmann v. State, 548 S.W.3d 46, 56
(Tex. App.—Corpus Christi–Edinburg 2018) (providing additional facts), aff’d, 602
S.W.3d 573 (Tex. Crim. App. 2020). The Corpus Christi Court of Appeals reformed
the judgment to reflect a conviction for the lesser included offense of attempted
tampering with physical evidence. Stahmann, 548 S.W.3d at 71.
Although clear evidence existed that Stahmann intended to conceal the pill
bottle, the Court of Criminal Appeals agreed with the reformation, finding that
“intent and concealment are two distinct elements of the offense” that must each be
supported by sufficient evidence. Stahmann, 602 S.W.3d at 581. The court further
agreed with the Corpus Christi Court of Appeals that “[a]ctual concealment requires
a showing that the allegedly concealed item was hidden, removed from sight or
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notice, or kept from discovery or observation.” Id. (quoting Stahmann, 548 S.W.3d
at 57). We are constrained to follow the holding of the Court of Criminal Appeals;
we therefore reject the State’s argument that it only needed to prove Appellant’s
intent to impair the availability of evidence. The State must prove that Appellant
intended to conceal and actually concealed the photograph. See id.
The State’s alternative argument is that Appellant, through her actions,
actually concealed the photograph by keeping it from Detective Shoemaker’s
discovery or observation at the hospital. Based on the above definition of conceal,
we cannot agree. In Stahmann, law enforcement’s knowledge informed the analysis:
because witnesses saw and then told law enforcement about the pill bottle, the court
found that Stahmann failed to conceal it. Id. at 580. Independent of whether law
enforcement in this case spoke to Appellant or any other CPS investigator, law
enforcement knew that the photograph existed and knew that they had a copy of it.
Law enforcement had no difficulty locating the photograph in question. In fact, the
evidence established that the photograph was already in the possession of the APD,
and Detective Shoemaker ultimately received a copy of the photograph from
Sergeant Beard.
We therefore hold that there is no evidence from which a rational trier of fact
could have found beyond a reasonable doubt that the photograph was actually
concealed. Accordingly, we sustain Appellant’s first issue.
3. Reformation
Having concluded that the evidence is insufficient to prove the “conceal”
element of the charge, we now must consider whether Appellant could have been
convicted of any lesser included offense. See Thornton v. State, 425 S.W.3d 289,
299–300 (Tex. Crim. App. 2014). Reformation of a judgment is required if (1) in
the course of convicting the appellant of the greater offense, the factfinder must have
necessarily found every element of the lesser included offense; and (2) conducting
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an evidentiary sufficiency analysis as though the appellant had been convicted of the
lesser included offense at trial, there is sufficient evidence to support a conviction
for the lesser included offense. Id. If the answer to both questions is yes, we must
reform the judgment to the lesser included offense to avoid the unjust result of an
acquittal. Id. at 300. If the answer to either question is no, we lack authorization to
reform the judgment. Id.
To perform the Thornton reformation analysis, we consider the attempt
statute, the tampering statute, and the allegations in the amended indictment. See id.
at 300–01. A person commits criminal attempt if, with the specific intent to commit
an offense, she does an act that amounts to more than mere preparation and that tends
but fails to effect the commission of the offense intended. PENAL § 15.01(a) (West
2019). As indicted under Section 37.09, Appellant is guilty of tampering with
physical evidence if she (1) knowing an investigation was in progress, (2) concealed
a photograph of the deceased child, (3) with the intent to impair its availability as
evidence in the investigation.
Combining the elements, the first prong of the Thornton analysis is satisfied
if the jury necessarily found that Appellant (1) knowing that an investigation was
pending or in progress, (2) with the specific intent to conceal the photograph,1
(3) with the specific intent to impair the photograph’s availability as evidence in the
investigation, (4) did an act that amounted to more than mere preparation, (5) that
tended but failed to result in the concealment of the photograph. Here, as in
Thornton, all five elements are met. See Thornton, 425 S.W.3d at 301–02. Having
found Appellant guilty of actual concealment, the jury explicitly found the first three
1
Although Section 37.09 of the Penal Code “seems not to require that the actor intend to conceal
evidence,” “the inclusion of the adverbial phrase ‘with the intent to impair its verity, legibility, or
availability as evidence in any subsequent investigation’ necessarily has the effect of requiring that the actor
have a concomitant intent to” conceal the evidence. Thornton, 425 S.W.3d at 300 n.59 (citing PENAL
§ 37.09(d)(1)).
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elements and impliedly found elements four and five. See id. Because the jury
necessarily found all the elements of the lesser included offense, the first prong of
the Thornton analysis is satisfied. Thornton, 425 S.W.3d at 299–300.
We now address Thornton’s second prong: whether sufficient evidence exists
for the lesser included offense of attempted tampering with physical evidence. Id.
We review the sufficiency of the evidence for the lesser included offense under the
same Jackson standard set out above. Under the Jackson standard, the factfinder is
permitted to draw reasonable inferences if each inference is supported by evidence.
Hooper, 214 S.W.3d at 15. An inference is a conclusion reached by considering
facts and deducing a logical consequence. Id. at 16. Juries are not permitted to reach
conclusions based on speculation or unsupported inferences. Id.
The dispositive question to be decided is whether there was sufficient
evidence of a specific intent to conceal the photograph. A person acts with intent
when it is her “conscious objective or desire to engage in the conduct or cause the
result.” PENAL § 6.03(a). Appellant argues that, because the APD already had the
photograph, she could not have possessed a “conscious objective” to keep the
photograph from the investigation—an impossible result. In Thornton, the Court of
Criminal Appeals opined on when a defendant might possess intent when attempting
an impossibility. There, the court stated that “it is less likely (though not impossible)
that the appellant would harbor a ‘conscious objective’ to cause a result he knew to
be impossible.” Thornton, 425 S.W.3d at 305.
In Thornton, the appellant was illegally walking in the middle of the street,
and law enforcement approached him to issue a citation for a Transportation Code
violation. Id. at 292. As law enforcement approached, Thornton “palmed” a small
glass crack pipe and dropped it on the sidewalk. Id. at 293. The pipe was “smaller
than a pen,” and the encounter with law enforcement took place as “[t]he sun was
coming up.” Id. at 304. Although Thornton was not likely to succeed in his attempt
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to hide the pipe, the court found that a jury could reasonably infer that Thornton
intended to conceal the pipe based on its material composition, size, and the dimly
lit hour of day. Id. at 305. The court went on to give an example of when forming
intent to conceal might be even less likely: “a neon pink bowling ball dropped at
high noon.” Id. Unlike with the small pipe, in the bowling ball example, a jury
would have less reason to make the inference that a defendant intended to conceal
evidence from law enforcement. Id.
But this is not the case of the neon pink bowling ball that a defendant could
intend, in a futile stretch of the imagination, to conceal. Here, the object at issue is
a digital photograph—something that, by its very nature, is easily copied, shared,
and stored in multiple locations. We recognize that the digital photograph here is
distinct from the above cited cases where the allegedly concealed item was tangible,
but our analysis remains the same. Although it is not impossible for a person to
harbor a conscious objective to produce an impossible result—here concealing
something from someone who already has a copy—the unique facts surrounding the
creation of the photograph by the APD, combined with Appellant’s knowledge about
the photograph’s origin, weigh heavily against a finding that Appellant intended to
conceal the photograph from the investigation.
Appellant, in her police interview, stated that she knew McDaniel had
received the photograph from the APD. Further, the photograph remained in the
possession of the APD throughout the investigation: Sergeant Beard took the
original photograph and it never left his possession; he eventually sent a copy of it
to Detective Shoemaker. Juries may make reasonable inferences, considering the
facts and the logical consequences, but under these facts it would be unreasonable
for a juror to conclude that Appellant harbored a “conscious objective” to conceal a
photograph and produce the impossible result of keeping the investigator’s own
photograph from the investigation.
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We conclude that there was insufficient evidence to find, beyond a reasonable
doubt, that Appellant possessed the specific intent to conceal the photograph.
Therefore, we hold that the evidence is insufficient to support a conviction for the
lesser included offense of attempted tampering with physical evidence. Our
disposition of Appellant’s first issue makes it unnecessary to address Appellant’s
remaining issues. See TEX. R. APP. P. 47.1.
III. This Court’s Ruling
We reverse the trial court’s judgment and render a judgment of acquittal.
KEITH STRETCHER
JUSTICE
October 30, 2020
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2
Willson, J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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