PD-0556-18 10/10/2018
1. “Where this Court and other appellate courts have found evidence sufficient to support an ‘alteration’ under the tampering statute when an item’s physical or geographical location is changed, did Stahmann err in failing to uphold Appellant’s tampering conviction based on his undisputed ‘alteration’ of the pill bottle’s location by throwing it away from himself and the crash site, over a fence, and into a patch of shrubbery?”
2. “Where the ‘dispositive inquiry is whether law enforcement noticed the object before the defendant tried to hide it and maintained visual contact’ of the object, and law enforcement only learned of the existence and location of the evidence from a third-party witness well after Appellant threw it away, did Appellant ‘conceal’ the pill bottle?”
Stahmann was involved in a high-speed collision with an SUV. Stahmann got out of his vehicle, and two bystanders saw him throw what looked like a prescription bottle over a nearby chain or wire fence. It landed on top of some grass and was still visible to the bystanders. Stahmann asked them why they were near the fence and what they were looking for. When police arrived, the bystanders told them they had seen Stahmann throw something over the fence and pointed out the bottle. Officers retrieved it and saw it was labeled with someone else’s name and contained pills that are illegal to possess without a prescription. Stahmann was charged with tampering with physical evidence by altering, destroying, or concealing the pill bottle. The jury found him guilty.
On appeal Stahmann argued the evidence was insufficient. The State conceded there was no evidence he had destroyed the bottle but maintained the evidence was sufficient under the other alleged manner and means—altered or concealed.
The court of appeals found there was no evidence Stahmann had altered or concealed the bottle. It held, based on common dictionary definitions, that “alter” means to change, make different, or modify and that “conceal” means to hide, remove from sight or notice, or keep from discovery or observation. The court of appeals found no evidence anything about the bottle had changed. It also held that because the bottle “remained in full sight of bystanders” the entire time, it was not actually hidden, removed from sight, or kept from discovery, despite evidence that Stahmann may have intended this to occur. The court of appeals reformed the judgment to attempted tampering.
The State argues, as it did in a motion for rehearing, that changing the location of evidence suffices to “alter” it. The State cites other appellate decisions involving defendants who were ultimately unsuccessful at concealing evidence. It suggests that failure to conceal the item from law enforcement (rather than a bystander or accomplice) is what matters. It draws this conclusion in part from multiple references to investigation in other parts of the statute. For example, Tex. Penal Code § 37.09(a)(1) requires that a person conceal the item “knowing that an investigation or official proceeding is pending or in progress” and intending to impair its availability “in the investigation or official proceeding.”). The State contends that by throwing the pill bottle away from the accident scene, Stahmann made it unnoticeable to law enforcement for a brief time until the bystanders pointed it out, and this is sufficient to constitute concealing evidence.
