PD-0307-21 06/09/2021
1. “By holding that the evidence was legally insufficient to establish David’s identity as the individual who committed the offense when he was alone in a locked bathroom with the tampered-with evidence, the Court of Appeals erred by ignoring the circumstantial evidence establishing David’s identity and requiring the State to disprove an alternative hypothesis regarding the offender’s identity.”
2. “By holding that placing marijuana in a toilet bowl containing feces does not constitute ‘altering’ or ‘destroying’ within the meaning of the tampering-with-physical-evidence offense, the Court of Appeals failed to apply the appropriate legal-sufficiency standard by improperly substituting its judgment for that of the jury’s and disregarding the jury’s common-sense inference that marijuana that has been contaminated with feces has been altered or destroyed.”
3. “Even if the Court of Appeals did not err by holding that the evidence was legally insufficient to support David’s conviction for tampering with physical evidence, the Court of Appeals erred by failing to reform the conviction to the lesser-included offense of attempted tampering with physical evidence, thereby violating this Court’s instruction in Thornton v. State.”
Police entered a hotel room occupied by David and three women on suspicion of narcotics, among other things. David was alone in the locked bathroom. He was dressed, and the toilet contained feces, urine, a glass pipe, and what appeared and smelled like marijuana. Police did not retrieve it for testing. David was convicted of tampering with evidence by altering, destroying, or concealing the marijuana. TEX. PENAL CODE § 37.09(a)(1).
The court of appeals reversed. It first held the evidence insufficient to prove David placed the marijuana in the toilet. Because there were two other people in the hotel room, there was no evidence of how long it was in the toilet, and no one saw David do it, the jury’s conclusion was speculative. It also held that the marijuana was neither altered nor destroyed. As for “alter,” it held there was no evidence the marijuana was “changed or modified,” see Stahmann v. State, 602 S.W.3d 573, 579 (Tex. Crim. App. 2020), because no witness or case law explains the effect of (fecal) toilet water on “unrefined organic material.” As for “destroy,” which means “ruined and rendered useless,” see Williams v. State, 270 S.W.3d 140, 146 (Tex. Crim. App. 2008), the court refused to “simply assume that it is unusable simply because it is repugnant that one would even attempt to do so.” “Whether the marijuana can be dried and used is an unanswered question.” And because of its holding on identity, the court decline do reform David’s conviction to attempted tampering as per Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014).
The State challenges all three holdings. First, it says the conclusion that David put the marijuana in the toilet is “[t]he most rational, common-sense inference from this circumstantial evidence.” Only by reweighing evidence and considering alternative reasonable hypotheses could the court of appeals hold otherwise. Second, the jury could have rationally concluded from common sense and the officers’ refusal or inability to handle the toilet’s contents that mixing marijuana with fecal toilet water changed its nature by making it “inseparably combined.” It was also common sense that feces-contaminated marijuana is useless for consumption. The State should not be required to present expert testimony when it is obvious the definitions of “altered” and “destroyed” have been satisfied. Third, because identity was proven, the court of appeals should have at least reformed David’s conviction to attempted tampering.
