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holding that evidence was insufficient to establish concealment when witnesses never lost sight of pill bottle thrown over a fence by the defendant
Summary of this case from Ransier v. StateOpinion
NO. PD-0556-18
04-22-2020
Karl Dean STAHMANN, Appellant v. The STATE of Texas
This appeal was transferred from the Austin Court of Appeals. Stahmann v. State , 548 S.W.3d 46, 51 (Tex. App.—Corpus Christi 2018).
Hervey, J., delivered the opinion of the Court in which Keasler, Richardson, Newell, and Walker, JJ., joined.
Karl Dean Stahmann, Appellant, was involved in an automobile accident, after which he threw a bottle of promethazine, a controlled substance, over a nearby wire fence before law enforcement arrived. The bottle landed two to three feet past the fence in plain view. He was convicted of third-degree felony tampering with physical evidence and was sentenced to 10 years' confinement and fined $5,000. The judge suspended his sentence and placed him on community supervision for 10 years. Stahmann appealed, arguing in part that the evidence was insufficient to prove that he destroyed, altered, or concealed the prescription bottle. The court of appeals agreed that the evidence was insufficient, but instead of rendering an acquittal, it reformed the judgment to show that Stahmann was convicted of the lesser-included offense of attempted tampering with physical evidence, a state-jail felony.
We will affirm the judgment of the court of appeals.
We focus on only the facts necessary to resolve this case. The court of appeals recited the facts in detail. Stahmann v. State , 548 S.W.3d 46, 51–53 (Tex. App.—Corpus Christi 2018).
Around 4:30 p.m. or 5:00 p.m. on July 1, 2012, Noberto Gonzalez was driving with his family from New Braunfels towards Marble Falls on Highway 46 near Canyon Lake when he was involved in an automobile accident. Stahmann was driving in the opposite direction when he stopped to turn left across the highway into a gated community. As Stahmann turned left, Gonzalez's SUV broadsided Stahmann's van. Gonzalez said that Stahmann appeared to be looking down and did not notice his approaching SUV. There is no dispute that Stahmann did not use his turn signal or that he did not yield the right of way.
Ronnie Ballard and Michael Freeman, two bystanders, were driving home together when they happened upon the car accident and stopped to render aid. Ballard and Freeman were the first to approach Stahmann's van. As they neared the van, Stahmann exited through the driver's-side door. When Ballard and Freeman reached the van and began checking on Stahmann's unconscious passenger, they noticed that Stahmann had walked in front of the van, near a wire game fence meant to keep animals inside the property, and threw something over it.
Ballard agreed with the defense's characterization that the fence was a wire game fence meant to keep cows, horses, or exotic game inside the property.
Ballard testified that Stahmann "walked towards the fence that was -- there was a gated fence right near the accident scene. At that time, I saw him throw something over the -- over the fence into -- near a tree at the bottom of that tree. It looks like -- looked to be, like, a prescription medicine bottle." According to Freeman, he was not far from Stahmann when Stahmann threw the bottle, and Freeman saw the bottle "land[ ] right there next to -- to the fence, maybe a couple of feet away." He said that it landed "plain as day right there in the -- he tried to throw it in the bush, but it didn't make it." (The bottle was close enough that one officer attempted to retrieve it through the fence with his asp, a short, expandable baton.) Both Ballard and Freeman said that they never lost sight of the pill bottle. When the first officer arrived on-scene, Comal County Deputy Chris Koepp, Ballard and Freeman told Koepp about the bottle and pointed it out to him. Koepp said that he could see the bottle "very clearly." When asked by the State whether the bottle was concealed, he said that it was, but on cross-examination, and after his memory was refreshed with his own prior testimony, he agreed that the pill bottle was in plain view on top of the grass.
PROCEDURAL HISTORY
The jury was charged on the offense of tampering with physical evidence and attempted tampering with physical evidence. It found Stahmann guilty of the greater offense, fined him $5,000, and sentenced him to 10 years' confinement. The sentence was suspended, however, and Stahmann was placed on community supervision for 10 years.
INDICTMENT
In two counts, the State alleged that,
[O]n or about the 1st day of July, 2012, KARL DEAN STAHMANN, hereinafter styled Defendant, knowing that an investigation was pending or in progress, did then and there alter, destroy or conceal a thing, to-wit: a bottle of pills, with intent to impair its verity or availability as evidence in the investigation.
* * *
[O]n or about the 1st day of July, 2012, KARL DEAN STAHMANN, hereinafter styled Defendant, knowing that an offense had been committed, did then and there alter, destroy or conceal a thing, to-wit: a bottle of pills, with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to said offense.
The State had to prove either that (1) knowing that an investigation or official proceeding was pending or in progress, (2) Stahmann altered, destroyed, or concealed a bottle of pills, (3) with the intent to impair its verity or availability as evidence in the investigation or official proceeding; or that (1) knowing that an offense was committed, (2) he altered, destroyed, or concealed a bottle of pills, (3) with the intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense. Stahmann v. State , 548 S.W.3d 46, 53 (Tex. App.—Corpus Christi 2018).
APPLICABLE LAW
a. Sufficiency of the Evidence
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 v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We view the evidence in the light most favorable to the verdict and consider all of the admitted evidence, regardless of whether it was properly admitted. Id. The jury is the sole judge of credibility and weight to be attached to the testimony of the witnesses. Id. Juries can draw reasonable inferences from the evidence so long as each inference is supported by the evidence produced at trial. Id. ; see Hooper , 214 S.W.3d at 16–17. Conclusions reached by speculation are insufficiently supported by the evidence to support a finding of guilt beyond a reasonable doubt. Hooper , 214 S.W.3d at 16. When the jury could reasonably draw conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict. Jackson , 443 U.S. at 326, 99 S.Ct. 2781. When the jury charge authorizes conviction on multiple theories of liability, we will sustain the conviction if the evidence is sufficient to prove any of the theories submitted in the jury charge. Campbell v. State , 426 S.W.3d 780, 786 (Tex. Crim. App. 2014).
b. Statutory Construction
Statutory construction is a question of law we review de novo. Harris v. State , 359 S.W.3d 625, 629 (Tex. Crim. App. 2011). When interpreting the language of a statute, we read words and phrases in context and construe them according to normal rules of grammar and usage. Id. We give effect to each word, phrase, clause, and sentence when reasonably possible. Id. (citing Lopez v. State , 253 S.W.3d 680, 685 (Tex. Crim. App. 2008) ; State v. Hardy , 963 S.W.2d 516, 520 (Tex. Crim. App. 1997) ). If the language of the statute is plain, we effectuate that plain language so long as doing so does not lead to absurd results. If the language is ambiguous or effectuating it would lead to absurd results, we can review a variety of extra-textual resources to determine its meaning. Id. ; see TEX. GOV'T CODE § 311.023.
c. The Statute
The tampering-with-physical-evidence statute, Section 37.09 of the Penal Code, states in relevant part that,
(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 impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or
* * *
(d) A person commits an offense if the person:
(1) knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense; or
* * *
TEX. PENAL CODE § 37.09(a)(1), (d)(1).
Our tampering-with-physical-evidence statute is derived from the Model Penal Code. Many states, like Texas, have adopted slightly different versions of the statute. For example, while the Texas statute refers only to "altering, destroying, or concealing," the Model Penal Code and other states have specified that a person is also guilty if he "removes" any record, document, or thing. Some states have included novel theories of tampering, such as when a defendant moves, suppresses, mutilates, hides, places, or disguises physical evidence.
In relevant part, Article 241.7 of the Model Penal Code states that,
A person commits a misdemeanor if, believing that an official proceeding or investigation is pending or about to be instituted, he:
(1) alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such proceeding or investigation; or
* * *
See Model Penal Code § 241.7 (1962).
Model Penal Code § 241.7 (1962).
See, e.g. , Fla. Stat. § 918.13 ; Neb. Rev. Stat. § 28-922 ; 18 PA. Cons. Stat. § 4910 ; Utah Code § 76-8-510.5.
State v. Jones , No. 2007-K-1052 (La. 6/3/08), 983 So. 2d 95, 102.
Del. Code tit. 11, § 1269 ("the person suppresses [physical evidence] by any act of concealment, alteration or destruction").
N.M. Stat. § 30-22-5 ; see State v. Rudolfo , 2008-NMSC-036, 144 N.M. 305, 311–12, 187 P.3d 170, 177 (holding evidence of tampering sufficient where the defendant hid the murder weapon in his car).
720 Ill. Comp. Stat. 5/31-4 ("disguises physical evidence"); Ga. Code § 16-10-94(a) ; Miami-Dade County, Fla., Code of Ordinances ch. art. IV, § 21-26(A)(3)(a); Wis. Stat. § 946.47(1)(b).
The Kentucky Supreme Court, interpreting the word "remove," said that it means "the act of changing the location or position of a piece of an object in a way that moves it from the scene of the crime." Kentucky v. James , 586 S.W.3d 717, 725 (Ky. 2019). Another court held that the crucial inquiry is whether the "defendant's actions disguised the evidentiary value of the article." Anderson v. State , 123 P.3d 1110, 1118 (Alaska Ct. App. 2005). The Louisiana Supreme Court said that its tampering-with-physical-evidence statute is the broadest in the nation. Under that statute, a person is guilty if he "moves" evidence with the requisite intent and knowledge. State v. Jones , No. 2007-K-1052 (La. 6/3/08), 983 So. 2d 95, 102 ("[N]othing beyond ‘movement’ is required by the statute if accompanied by the requisite intent and knowledge."). Although our statute does not include a "moves" theory of liability, the State argues that we should interpret "alter" to include anything that is "moved."
DISCUSSION
a. Alter
The word "alter" must be interpreted according to its common usage because it is not statutorily defined. The State argues that "alter" in its common usage means "to ‘change in character or composition, typically in a comparatively small but significant way’ " and that the character of a thing is changed when it is moved, no matter how de minimis the movement. Under this theory, Stahmann would be guilty of tampering with the pill bottle the moment he touched it in his pocket with the intent to impair its availability as evidence. We are not persuaded. If the legislature intended for the mere movement of a physical thing to constitute tampering, it could have said that. We think the more reasonable interpretation is that, when a defendant is alleged to have altered a physical thing, like the pill bottle in this case, in its common usage "alter" means that the defendant changed or modified the thing itself, not that he merely changed its geographic location.
State's Brief on the Merits at 7 (citing Oxford English Dictionary , https://en.oxforddictionaries.com/definition/alter (last visited Nov. 8, 2018)).
We do not discuss the court of appeals's decision when resolving this issue because the State raised this argument for the first time in a motion for rehearing at the court of appeals, which the court denied without written opinion.
The State alleged that Stahmann altered a pill bottle, not that he altered a crime scene.
The cases cited by the State do not change our conclusion. The State argues that the court of appeals in Carnley v. State , 366 S.W.3d 830 (Tex. App.—Fort Worth 2012, pet. ref'd) held that "moving a car constituted altering the car" for purposes of the tampering statute. However, the court in that case explicitly said that it did not resolve the issue because the parties agreed that "[Carnley] altered the Pontiac by moving it." Id. at 834 n.6. The State also cites Ramos v. State , 351 S.W.3d 913 (Tex. App.—Amarillo 2011, pet. ref'd), Martinez v. State , No. 05-17-00817-CR, 2018 WL 2434409 (Tex. App.—Dallas May 30, 2018, pet. ref'd), and Burks v. State , 2016 WL 6519139 (Tex. Crim. App. Nov. 2, 2016) (not designated for publication), overruled on reh'g 2017 WL 3443982, all of which deal with corpses. In Ramos , the Amarillo Court of Appeals held, and later this Court in Burks held, that the evidence is sufficient to prove that a corpse was altered if the corpse was moved and its physical state changed. Burks , 2016 WL 6519139, at *6 ; Ramos , 351 S.W.3d at 915. In Martinez , another unpublished case, that court of appeals misread Ramos and Burks and held that "evidence is ‘altered’ when its location or physical state is changed." Martinez , 2018 WL 2434409, at *3 (emphasis added). All three cases are distinguishable. This case does not deal with a corpse, which is quantitatively different than the prescription pill bottle at issue here, and this case does not deal with altering the location and physical state of the pill bottle, only its location.
In our original Burks decision, we relied on the Ramos Court's interpretation of "alter," which it adopted from dicta in Rotenberry v. State , 245 S.W.3d 583, 587 (Tex. App.—Fort Worth 2007, pet. ref'd). Rotenberry was about the concealment of physical evidence, not altering physical evidence.
The State also cites two unpublished decisions from courts of appeals in Ohio and one published case from the Kentucky Supreme Court. Kentucky v. Henderson , 85 S.W.3d 618, 620 (Ky. 2002) ; State v. Wilson , 2012-Ohio-3098, 2012 WL 2628718, ¶¶ 41–43 (not designated for publication); State v. Brodbeck , 2008-Ohio-6961, 2008 WL 5423445, ¶¶ 50–52 (not designated for publication);.
We are not persuaded. In Henderson , the Kentucky Supreme Court construed the word "conceal," not "alter." Henderson , 85 S.W.3d at 619–20. In Wilson , although the court of appeals held that the evidence was sufficient to prove tampering where the defendant " ‘completely changed the crime scene,’ " it did not specify which theory of tampering (i.e., altering, destroying, concealing, or removing) it relied on in holding the evidence sufficient. It merely held that the jury's conclusion to convict Wilson was not unreasonable or against the manifest weight of the evidence. Wilson , 2012 WL 2628718, ¶¶ 41. In Brodbeck , the court of appeals held that the evidence was sufficient to prove tampering with physical evidence when Brodbeck moved a corpse and repositioned a firearm near one of its hands to simulate a suicide. Brodbeck , 2008 WL 5423445, ¶¶ 50–52. But the court never specified what Brodbeck was alleged to have tampered with. Id. It suggested at one point that Brodbeck might have been charged with altering the crime scene. Id. However, that is not the issue here. The State's allegation is that Stahmann tampered with a prescription pill bottle, not the crime scene.
With this background, we conclude that the evidence is insufficient to prove that Stahmann altered the prescription pill bottle when he threw it over the fence because the mere act of throwing the pill bottle did not change the bottle itself. Having found the evidence of alteration insufficient, we next turn to whether the evidence of concealment was sufficient.
b. Conceal
The State argues that "conceal" means to remove from sight or notice, even if only temporarily, and that the statute refers to concealing evidence from law enforcement. According to the State's argument, it does not matter that Ballard and Freeman never lost sight of the pill bottle, that they directed Koepp to the bottle, that Koepp could see it "very clearly," or that the bottle was easily retrieved, because Stahmann concealed it from Koepp when he threw it over the fence before Koepp arrived to investigate.
Even if we assume without deciding that the statute applies to only law enforcement, as the State argues, we conclude that the pill bottle in this case was not concealed from law enforcement. What the witnesses saw and told law enforcement informs whether the physical evidence was concealed from law enforcement. The outcome of this case might be different had Ballard and Freeman not been there, had they lost sight of what Stahmann threw or where it landed, had they not spoken to Koepp and directed him to the pill bottle when he arrived, or had Koepp had a difficult time locating it. But those are not the facts of this case.
The State argues that the court of appeals erroneously relied on Thornton and Villarreal v. State, No. 13-15-00014-CR, 2016 WL 8919852 (Dec. 8, 2016), but we disagree. According to the State, unlike in this case, in those cases the police had first-hand knowledge of the "concealed" evidence because Thornton and Villarreal tried to conceal the evidence in plain view of police officers. But we never attributed our holding in Thornton to the fact that Thornton tried to conceal evidence specifically from the police. Thornton dealt with the reformation of convictions and whether the evidence was sufficient for a jury to rationally infer that Thornton "harbored the specific intent to conceal the crack pipe and thereby impair its later availability as evidence." Thornton , 425 S.W.3d at 303. Second, Villarreal was unpublished and dealt with a Wal-Mart employee who saw Villarreal throw a pill bottle under a vehicle, not law enforcement.
The State presents us with three hypotheticals to illustrate why it thinks that our interpretation will lead to absurd results, but none of the hypotheticals reflect the facts of this case.
The State argues that Munsch v. State , No. 02-12-00028-CR, 2014 WL 4105281 (Tex. App.—Fort Worth Aug. 21, 2014) (mem. op., not designated for publication) and Lujan v. State , No. 07-09-0036-CR, 2009 WL 2878092 (Tex. App.—Amarillo Sept. 9, 2009) require a different result, but we disagree. In Munsch , police found a bag containing 16.94 grams of methamphetamine after a traffic stop when the driver told police on the way to the county jail that Munsch threw a bag of methamphetamine out of the passenger-side window while they were being pulled over. Munsch , 2014 WL 4105281, at *3. After returning to the scene, the police officer located the bag with his flashlight, although he had difficulty doing so because it was dark outside. Id. at *8. In Lujan , as a police officer approached Lujan on foot to detain him for possible drug activity, he noticed that Lujan "took his right hand from his left side and moved it towards the center ‘as if he was throwing something.’ " Lujan , 2009 WL 2878092, at *1. The officer found a crack pipe on the ground. Id.
According to the State, this case and Munsch are similar because in both cases law enforcement would not have found the evidence without the assistance of a third-party witness. We think that Munsch is distinguishable. The evidence in that case established that it was not until the driver was arrested and secured in the police cruiser that she told the officer about the bag of drugs. In this case, however, Ballard and Freeman told Koepp about the bottle as soon as he arrived. Koepp had not even begun his on-scene investigation. Second, it was difficult for the officer in Munsch to find the bag even after the driver told him about it since it was dark and Munsch threw it out of the passenger-side window while the vehicle was still moving. But here, Ballard and Freeman showed Koepp exactly where the bottle was, and Koepp saw the bottle "very clearly" in the afternoon daylight.
The State argues that Lujan shows that a defendant need not successfully conceal something to be guilty of tampering with evidence by concealment, but we agree with the court of appeals that "[a]ctual concealment requires a showing that the allegedly concealed item was hidden, removed from sight or notice, or kept from discovery or observation." Stahmann , 548 S.W.3d at 57. We also agree with the court of appeals that intent and concealment are two distinct elements of the offense and that the Lujan Court erred if it concluded otherwise. Id. 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 that he failed to conceal it as he intended because the bottle landed short of the bush in plain view on top of some grass.
The evidence is insufficient to prove that Stahmann concealed the pill bottle when he threw it over the fence.
CONCLUSION
Because we did not grant review of the court of appeals's holding reforming Stahmann's conviction, we do not address that holding and affirm the judgment of the court of appeals.
Yeary, J., filed a dissenting opinion in which Keller, P.J., and Keel and Slaughter, JJ., joined.
DISSENTING OPINION
Yeary, J., filed a dissenting opinion in which Keller, P.J., and Keel and Slaughter, JJ., joined.
Appellant was convicted of tampering with physical evidence. On direct appeal, he challenged the legal sufficiency of the evidence to establish, among other things, that he did anything to alter, destroy, or conceal the thing he was alleged to have tampered with. The Thirteenth Court of Appeals agreed and, finding that the evidence did support the lesser-included offense of attempted tampering with physical evidence (and rejecting all of Appellant's claims of trial error), it reversed the trial court's judgment of conviction and remanded the cause for a new punishment proceeding. Stahmann v. State , 548 S.W.3d 46 (Tex. App.—Corpus Christi 2018). The issue in this case is whether Appellant "concealed" the alleged object (as opposed to unsuccessfully attempting to conceal it). We should reverse the court of appeals' judgment and affirm the trial court's judgment, thereby reinstating Appellant's conviction.
See Tex. Penal Code § 37.09(a)(1) ("A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he ... alters, destroys, or conceals any ... thing with intent to impair its verity ... or availability as evidence in the investigation or official proceeding[.]"); id. § 37.09(d)(1) ("A person commits an offense if the person ... knowing that an offense has been committed, alters, destroys, or conceals any ... thing with intent to impair its verity ... or availability as evidence in any subsequent investigation of or official proceeding related to the offense[.]").
BACKGROUND
Sometime around 4:30 or 5:00 p.m. on July 1, 2012, Appellant was involved in a collision while making a left hand turn across the oncoming lane of traffic on Highway 46 in Comal County. The Mazda van he was driving was broadsided by a Chevrolet TrailBlazer that was traveling about fifty miles per hour, and the front passenger side of the van was caved in. When two passers-by stopped to assess the situation, they saw Appellant emerge from the driver's side of the van, bleeding from a gash over his eye. A passenger in the van was unconscious. One of the passers-by contacted emergency services on his cell phone. Both passers-by then witnessed Appellant approach a wire "game fence" along the side of the road and toss a brown prescription bottle over the fence. One of the passers-by testified that Appellant "tried to throw it in the brush, but it didn't make it." The bottle came to rest on the grass next to some shrubbery at the bottom of a tree, still visible to the passers-by.
When a deputy sheriff arrived at the scene, the passers-by directed his attention to the pill bottle and described for him how they had watched Appellant throw it there. Once the deputy sheriff's attention was directed to it, he could also see the bottle as it lay on the far side of the game fence. He then reported it to a state trooper who arrived at the scene. After the trooper unsuccessfully attempted to retrieve the pill bottle through the fence with his expandable baton, the deputy sheriff entered the property from a nearby gate and retrieved the bottle. The label indicated that the prescription had been made out to a "James Castaneda," and both the label and an imprint on the pills in the bottle identified them as promethazine, a prescription-only drug. Forensic testing confirmed that the pill bottle contained 2.12 grams of promethazine.
One of the passers-by testified:
Q. All right. Now, this fence, was it a normal fence? In other words, just a wire fence, or was it a boarded up - - like, a picket fence?
A. A wire fence.
Q. So you could see easily through the fence?
A. Yes, sir.
Q. And you could see the bottle in [Appellant's] hand?
A. Yes, sir.
Q. You could see the bottle in the air?
A. Yes, sir.
Q. And you could see it land on the other side?
A. Yes, sir.
Q. And you never lost sight of it?
A. No, sir.
* * *
Q. Okay. And, in fact, when the officer came over, you were able to point it out to him, and it was visible to you. And you could point to him and say, That's where the bottle is?
A. Yes, sir.
The deputy sheriff testified:
Q. Was the pill bottle visible when you found it?
A. When I was directed there , yes , I could visually see it.
(Emphasis added.) The deputy sheriff nevertheless maintained that the pill bottle had been "concealed."
The deputy sheriff testified that it is an offense to possess the commonly abused drug promethazine without a prescription. The Department of Public Safety chemist who analyzed the pills also testified that promethazine is categorized as a dangerous drug, and that to legally possess it requires a prescription.
In separate paragraphs of the count of the indictment that alleged tampering with physical evidence, two theories were alleged: that Appellant altered, destroyed, or concealed a thing, "to-wit, a bottle of pills," knowing that an investigation was pending or in progress (paragraph 1), and knowing that an offense had been committed (paragraph 2), with intent to impair its verity or availability as evidence in the investigation. The jury convicted Appellant without specifying which theory, whether (1) investigation pending or in progress or (2) offense committed, and the trial court assessed his punishment at ten years' confinement in the penitentiary, probated for a term of ten years. Then, on direct appeal, Appellant argued that the evidence was legally insufficient to show that he altered, destroyed, or concealed the pill bottle.
The indictment contained a total of four counts, the first three alleging various theories of aggravated assault and intoxication assault against the passengers in the TrailBlazer, but Appellant was ultimately prosecuted only under the fourth count, which alleged the offense of tampering with physical evidence as described in the text.
See Tex. Penal Code § 37.09(a)(1) (investigation pending or in progress).
See Tex. Penal Code § 37.09(d)(1) (offense committed).
The court of appeals agreed. Noting that the State conceded that there was no evidence to show the pill bottle was destroyed, Stahmann , 548 S.W.3d at 54, the court of appeals addressed only whether there was evidence that it had been altered or concealed. The State argued that the pill bottle had been altered because the label was torn and its text was partially smeared when it was recovered by law enforcement. The court of appeals rejected this argument for lack of any evidence that the label had not been torn and smeared before Appellant tossed it over the fence. Id. at 54–55.
Turning, then, to whether the evidence demonstrated concealment of the pill bottle, the court of appeals held that it did not because "the evidence established that the pill bottle remained in full sight of bystanders from the time it was thrown by [Appellant], and of police from the time they arrived, until the time it was retrieved as evidence." Id. at 56. "Actual concealment requires a showing that the allegedly concealed item was hidden," the court of appeals observed, "removed from sight or notice, or kept from discovery or observation." Id. at 57 (citing a definition of "conceal" gleaned from the court of appeals opinion in Thornton v. State , 401 S.W.3d 395, 398 (Tex. App.—Amarillo 2013) reversed on other grounds , 425 S.W.3d 289 (Tex. Crim. App. 2014) ). The court of appeals concluded that "[s]uch evidence is lacking here." Id. We granted the State's petition for discretionary review in order to examine the court of appeals' conclusions.
ANALYSIS
This case turns on a question of statutory construction: What is the scope of the offense as defined by the statute? See Delay v. State , 465 S.W.3d 232, 235 (Tex. Crim. App. 2014) ("[S]ometimes appellate review of legal sufficiency involves simply construing the reach of the applicable penal provision in order to decide whether the evidence ... actually establishes a violation of the law."). We review questions of statutory construction de novo . Lang v. State , 561 S.W.3d 174, 180 (Tex. Crim. App. 2018). Here the question boils down to whether Appellant's conduct in tossing the prescription pill bottle over the game fence constituted either "altering" or "concealing" it in contemplation of Section 37.09 of the Penal Code. Because I would conclude that the evidence supports a finding that Appellant actually "concealed" the bottle, I will not address whether he may also have "altered" it.
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. GOV'T CODE § 311.011. It is appropriate to consult standard dictionaries to construe the ordinary meaning of an undefined statutory term, "and jurors may ... freely read statutory language to have any meaning which is acceptable in common parlance." Clinton v. State , 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) (quoting Vernon v. State , 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) ).
Resorting to standard dictionary definitions, various courts of appeals have defined the word "conceal" to mean "to hide, to remove from sight or notice; to keep from discovery or observation." See Thornton v. State , 401 S.W.3d at 398 (citing Rotenberry v. State , 245 S.W.3d 583, 588–89 (Tex. App.—Fort Worth 2007, pet. ref'd), and Hollingsworth v. State , 15 S.W.3d 586, 595 (Tex. App.—Austin 2000, no pet.) ); see also Lewis v. State , 56 S.W.3d 617, 625 (Tex. App.—Texarkana 2001, no pet.) (adopting a dictionary definition of "conceal," namely, "[t]o hide or keep from observation, discovery, or understanding; keep secret[.]"). Webster's New International Dictionary similarly defines "conceal" with a nod to a purpose not just to "hide" a thing from "sight," but also to withhold it from "notice": "1 : to prevent disclosure or recognition of : avoid revelation of : refrain from revealing : withhold knowledge of : draw attention from : treat so as to be unnoticed ... 2 : to place out of sight : withdraw from being observed : shield from vision or notice". WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE , at 469 (2002). In her concurring opinion in Thornton , Presiding Judge Keller remarked that, "[w]hatever else ‘conceal’ might mean in the context of the tampering with evidence statute, it at least means to remove from sight." 425 S.W.3d at 307 (Keller, P.J., concurring) (emphasis added). That "conceal" means at least to "remove from sight" does not mean, of course, that it carries that meaning exclusively .
Still, a rational jury could have inferred from Appellant's conduct that he threw the pill bottle over the fence with the intent to relocate it to a place where it would not likely be observed or noticed by accident investigators. Had the passers-by not seen Appellant toss the pill bottle over the game fence and reported that conduct to the investigating officials, it is highly unlikely that those officials would have noticed it. Though it may have remained within sight of anyone who knew to look for it, they certainly would not have recognized its evidentiary significance. In this sense, a jury could rationally conclude that Appellant acted upon the pill bottle in such a way as to "conceal" it—at least for a brief period of time —from those who would be conducting the pending or subsequent "investigation" or "official proceeding" as contemplated by the statute.
Nothing in the statutory language requires that the thing concealed remain concealed for any period of time as a condition of prosecution for the completed offense.
Does the fact that Appellant was observed tossing the pill bottle by non-investigating passers-by, who never lost sight of it and were able to call it to the attention of investigators despite Appellant's conduct, mean that he may only be convicted of an inchoate offense—attempted tampering with physical evidence? I do not think so, for the reasons that follow. The word "conceal" is a somewhat relative term, taking its meaning to a certain extent from context. Grammatically, it operates as a transitive verb, and it typically takes both a direct object (here, as specified by the statute, "any record, document, or thing") and an indirect object —some person from whom that direct object is "concealed." But Section 37.09 does not explicitly identify an indirect object—it fails to specify from whom the direct object must be hidden from sight or notice. This lack of specificity creates a latent ambiguity which must be addressed in order to resolve this case: From whom must the "thing" in the statute be concealed? I believe there are three plausible answers.
See William Strunk Jr. & E.B. White, The Elements of Style 95 (4th ed. 2000) ("transitive verb A verb that requires a direct object to complete its meaning: They washed their new car. An intransitive verb does not require an object to complete its meaning: The audience laughed . Many verbs can be both: The wind blew furiously. My car blew a gasket.").
Id. at 91 ("direct object A noun or pronoun that receives the action of a transitive verb. Pearson publishes books .").
Id. ("indirect object A noun or pronoun that indicates to whom or for whom, to what or for what the action of a transitive verb is performed. I asked her a question. Ed gave the door a kick.").
Both "alter" and "destroy" are also transitive verbs, but neither so readily takes an indirect object as does "conceal." One typically "alters" or "destroys" a thing, but one does not typically alter or destroy that thing for or from someone or something.
First, the statute may contemplate that the actor must actually conceal the thing from everyone before he may be prosecuted for tampering under a concealment theory. By this understanding of the statute, Appellant would be guilty only of the attempt because he failed to remove the pill bottle from the sight or notice of the passers-by. The court of appeals seems to have applied this construction, or something like it, when it held the evidence insufficient to establish concealment because the pill bottle "remained in full sight of bystanders from the time it was thrown by [Appellant], and of police from the time they arrived, until the time it was retrieved as evidence." Stahmann , 548 S.W.3d at 56. In other words, because Appellant did not conceal the pill bottle from everyone , he cannot have committed a completed offense.
In all three of these plausible scenarios, I of course assume the actor harbors the requisite culpable mental state—knowledge that an investigation or official proceeding is underway or pending, or that an offense has been committed, and a specific intent to impair the verity or availability of the thing that is acted upon as evidence in the investigation or official proceeding.
The record does not support the court of appeals' observation that the pill bottle was "in full sight" of the investigating officers "from the time they arrived[.]" It is more accurate to say that at some point after their arrival it came within their sight, and thereafter remained within their sight—but only once the passers-by called it to their attention.
Second, the statute may operate more broadly, contemplating that the actor commits an offense so long as he manages to conceal the thing from someone —anyone . Under this construction, Appellant would be guilty of actual concealment because he removed the pill bottle from the notice of someone /anyone —that is, everybody but the two passers-by. Only because the passers-by alerted the investigating officers to the place where Appellant had tossed it did they (or anybody else) notice it at all.
As a third alternative, we could deduce from the context of the statute that the indirect object of the concealment is a subset of the "anyone/someone" concept: the investigators themselves—those whose pending or in-progress investigations or official proceedings would be thwarted by the concealment. By this understanding, too, Appellant would be guilty of the completed offense, because he acted in such a way as to successfully conceal the pill bottle from the notice of the accident scene investigators, if nobody else. But for the passers-by, it is highly unlikely that the pill bottle would ever have come to their attention.
The Court seems to agree, readily conceding that the officers here would not likely have discovered the pill bottle unless the passers-by called both its location and its significance to their attention. Majority Opinion at 580. The Court declares, "What the witnesses saw and told law enforcement informs whether the physical evidence was concealed from law enforcement." Id. I suppose the Court means to suggest that whether the pill bottle was successfully concealed from law enforcement necessarily takes into account whether it was also successfully concealed from others who might be able to point it out to law enforcement.
Of these three possible constructions of the statute, I believe the first one—requiring concealment from everyone —does the least to accomplish the evident "object sought to be obtained" by the statute—to preserve physical evidence by deterring those who would purposefully compromise the integrity of an official investigation or proceeding. TEX. GOV'T CODE § 311.023(1). If an actor had to succeed in his objective to hide material evidence from every possible witness before his conduct could qualify as "concealment" under the statute, then, as a practical matter, almost no actor would ever be found guilty of actually tampering with evidence under a concealment theory. Any time the evidence might ultimately be discovered, the courts would declare that the most the defendant could have committed was attempted concealment because, at some point, the evidence would have been found.
By the other two interpretations of the statute—that an actor is guilty so long as he conceals from (1) any other person, or (2) at least from official investigators—I have already concluded that the evidence is sufficient to show that Appellant is guilty of actual, not merely attempted, tampering with physical evidence. Therefore, I need not decide which of those two alternative constructions is correct for purposes of resolving the legal sufficiency issue here. Because a rational jury could have found Appellant removed the pill bottle—even temporarily—from the notice of the investigators who would conduct the pending or subsequent investigation, if nobody else, the evidence is sufficient to prove he "concealed" it.
CONCLUSION
I would hold that the evidence was legally sufficient to support the jury's finding that Appellant committed the offense of tampering with physical evidence in that he concealed a thing with intent to impair its availability as evidence in an investigation or official proceeding. Accordingly, I would reverse the judgment of the court of appeals and reinstate the judgment of the trial court. Because the Court does not, I respectfully dissent.