THORNTON v. STATE

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Court of Criminal Appeals of Texas.

Gregory THORNTON, Appellant v. The STATE of Texas.

No. PD–0669–13.

Decided: April 2, 2014

Joel Cook, for Gregory Thornton.

OPINION

After a jury trial, the appellant was convicted of the third-degree felony offense of tampering with evidence, on a theory of concealment,1 for reaching into his pocket, pulling out a crack pipe, and dropping it to the ground in the presence of two police officers.2 On appeal, the Seventh Court of Appeals deemed the evidence to be insufficient to support a conviction for tampering with evidence by concealment because, with respect to the element of concealment, the evidence showed that “at least one of the officers on the scene ․ was aware of the presence of the item alleged to have been concealed” at all times.3 Accordingly, it reversed the judgment of the trial court and ordered that the defendant be acquitted.4

After this Court, on initial discretionary review, remanded the cause for the court of appeals to consider reforming the judgment to reflect a conviction for attempted tampering with evidence,5 the court of appeals, in a published opinion, explicitly declined to do so.6 We granted the State's petition for discretionary review to address three issues relating to the court of appeals's opinion on remand: 1) Whether the court of appeals erred to hold that the State failed to “preserve” the issue of reformation; 2) Whether the court of appeals erred to rule that reformation may be used only to reform the “aggravating elements” of an offense; and 3) Whether the court of appeals erred to conclude that there is insufficient evidence to support a conviction for attempted tampering with evidence. We will reverse.

I. FACTS AND PROCEDURAL POSTURE

On April 11, 2008, Lubbock Police Officers Meil and Roberts, dressed in plain clothes and driving an unmarked car, were assigned to burglary patrol in a residential neighborhood. At approximately 7:30 a.m., as “[t]he sun was coming up,” Meil and Roberts spotted the appellant and a female companion walking in the middle of a street that was lined on either side by an unobstructed sidewalk. Seeing this, Roberts drove toward the curb in order to cite the appellant and his companion for violating the “Use of Sidewalk” provision of the Texas Transportation Code.7 As the officers' vehicle was pulling over, the appellant and his companion stepped from the street onto the sidewalk and ultimately continued to walk with their backs to the officers' car.

By the time Meil and Roberts exited their vehicle, the appellant and his companion were approximately ten to fifteen feet away. After stepping onto the sidewalk, the officers ordered the appellant and his companion to stop. As the appellant turned around, Meil and Roberts-now twenty feet from the appellant-identified themselves as police officers and showed the appellant their badges and sidearms. Apparently realizing that the two men in front of him were police officers, the appellant reached into his pocket and dropped a small object that broke when it hit the sidewalk, producing the distinctive sound of shattering glass. After dropping the object, the appellant approached the officers. The broken pieces of the object remained in the middle of the sidewalk where the appellant had dropped it.

Because of his position on the sidewalk, Meil did not actually see the appellant drop the object. Roberts, on the other hand, never lost sight of the object from the moment the appellant removed it from his pocket. Roberts, having his own suspicions as to the nature of the object, directed Meil to inspect it. Based on its shape, contents, and the presence of burn marks, Meil was able to confirm that the object was, in fact, a crack pipe. The officers then arrested the appellant for possession of drug paraphernalia,8 and he was ultimately charged by indictment with tampering with evidence by concealment.

A. At Trial

The appellant exercised his right to a jury trial on guilt-innocence, but elected to have the trial court assess punishment. The State's only witnesses at the guilt phase were Meil and Roberts. During the course of direct examination, Roberts confirmed that the appellant had “stealthfully reached in [his pocket], pulled [the pipe] out palming it, and then dropped it” as he walked toward the officers. While cross-examining Roberts, defense counsel directed him to re-enact the appellant's precise movements when he reached into his pocket and dropped the pipe. When both parties rested and closed, the appellant, seizing on the fact that Roberts testified that he had never lost sight of the crack pipe, asked the trial court to instruct the jury as to the lesser-included offense of attempted tampering with evidence.9 The State made no argument opposing the appellant's proposed charge, but the trial court nevertheless rejected it. After deliberation, the jury returned a verdict of guilty on the charge of tampering with evidence by concealment, and the appellant was sentenced by the trial court to a forty-five year term of confinement.10

B. On Appeal

On his initial appeal to the court of appeals, the appellant argued that the evidence upon which the jury relied to convict him was legally insufficient to establish the element of concealment. The State responded, first, that the crack pipe was concealed from Roberts, however momentarily, when the appellant “palmed” the pipe as he was removing it from his pocket; and second, that even if Roberts had a clear view of the crack pipe at all times, Meil did not—and that on the basis of the appellant's successful concealment of the evidence from the view of Meil, the appellant's conviction was sufficiently supported by the evidence and should be affirmed. The court of appeals disagreed with the State on both grounds. As to the first ground, the court of appeals simply disputed the State's claim that the pipe was out of Roberts's view, even for a moment;11 as to the second, the court reasoned that, since “at least one of the officers on the scene ․ was aware of the presence of the item alleged to have been concealed,” case law suggests that “[one] officer's awareness of evidence is imputed to other officers.”12 Accordingly, it reversed the judgment of conviction and rendered a judgment of acquittal as to the tampering charge.13

During the pendency of that appeal, however, and before the court of appeals issued its opinion, we issued our own opinion in Bowen v. State.14 In Bowen, we held that a court of appeals, upon finding the evidence supporting a conviction to be legally insufficient, is not necessarily limited to ordering an acquittal, but may instead reform the judgment to reflect a verdict of guilty on a lesser-included offense—even when no lesser-included instruction was given at trial. In light of this holding, in its initial petition for discretionary review, the State asked this Court to vacate the court of appeals's judgment in this case and remand the cause for “that court to consider the effect of Bowen, if any, on its reasoning and analysis [.]”15 We granted the State's request.16

On remand, the court of appeals gave three reasons why it considered reformation of the judgment to reflect a conviction for the lesser offense to be inappropriate for this case. First, the court of appeals held that “the State waived any error with respect to the trial court's failure to submit a lesser-included offense” when it “stood idly by as the trial court denied Appellant's request for one.”17 Second, and “[n]otwithstanding the issue of waiver,” the court of appeals read our opinion in Bowen to stand for the proposition that “an appellate court should reform the conviction to the lesser-included offense in [only] those situations where the State has failed to prove an ‘aggravating element’ of the charged offense, but has met its burden of proof as to the ‘essential elements' of the lesser included offense.”18 On the basis of this characterization, the court of appeals deemed Bowen “not relevant to [its] decision to acquit rather than reform the judgment,” since “[c]oncealment is not an ‘aggravating element’ of the offense of tampering with evidence, it is the very sine qu [a ] non of that offense.”19 Third, according to the court of appeals, “even if Bowen were applicable to this case, the evidence presented would not be legally sufficient to support a conviction of attempted tampering with evidence.”20 The court of appeals reasoned that a contrary conclusion would require “total speculation as to whether or not Appellant had the specific intent to ‘conceal’ the evidence once he removed it from his pocket, or whether he merely intended to dispossess himself of it.”21

In its present petition for discretionary review, the State has asked us to review each of the court of appeals's justifications for refusing to reform the judgment to reflect a conviction for attempted tampering. We will address these justifications in turn.

II. ANALYSIS

A. Preservation of Error?

After determining that the evidence of concealment was legally insufficient, the court of appeals began its consideration of whether to reform the appellant's judgment by positing that “the State waived any error with respect to the trial court's failure to submit a lesser-included offense by failing to either timely request such a submission or object to the omission of the issue in the jury charge.”22 We note, as a preliminary matter, that the State has never objected to, nor complained of, the trial court's failure to submit a lesser-included offense instruction. Rather, the State has complained (and continues to complain) of the court of appeals's failure to reform the judgment to reflect a conviction for the lesser offense. Nevertheless, in their briefs, both parties seem to understand the court of appeals's reasoning to be that, by “failing to either timely request such a submission or object to the omission of the issue in the jury charge” during trial, the State essentially “waived” the right to later request a reformation of the judgment on appeal.23

Our jurisprudence regarding the availability of judgment reformation after a finding of insufficient evidence began nearly fifteen years ago, in Collier v. State.24 In Collier, a four-judge plurality reasoned that an appellate court should not rescue “[t]he [S]tate ․ from a trial strategy” of “not requesting instructions on lesser included offenses [and expecting that] the jury will convict an accused of the greater offense rather than let the accused ․ go scot-free.”25 Unwilling to soften the back-firing effects of the State's “overreaching,”26 the plurality concluded that “a court of appeals may reform a judgment of conviction to reflect conviction of a lesser included offense only if ․ either the jury was instructed on the lesser included offense ․ or one of the parties asked for but was denied such an instruction.”27 As neither of those conditions was met in that case, the plurality voted to affirm the court of appeals's refusal to reform the judgment of conviction.28 In a concurring opinion, Judge Keasler noted that he would have allowed courts of appeals to reform judgments to reflect a conviction for a lesser-included offense only under circumstances in which the “lesser-included offense was submitted in the jury charge.”29

In Haynes v. State, a six-member majority of the Court discerned that “[t]he narrowest ground upon which” the Collier plurality and Judge Keasler had “agreed is that an appellate court may ․ reform a judgment to reflect a conviction for the lesser-included offense when that ․ offense was submitted in the jury charge.”30 In the course of reaching this conclusion, however, the Court noted that, in the context of double jeopardy, the State is barred from initiating a subsequent prosecution for a lesser-included offense after an appellate reversal for insufficient evidence because “[n]othing prevented the State from requesting a lesser included offense instruction [at trial.]”31 The Haynes majority reasoned that “the State's ‘overreaching’ conduct in both the double jeopardy and the reformation contexts is the same, thus requiring similar treatment and analysis.”32 Thus, while purporting only to adhere to the narrowest ground agreed upon in Collier, Haynes gave credence to the notion that reformation is not an appropriate remedy when the State “overreaches” by failing to ensure that a lesser-included instruction is given at trial.

The “overreaching” rationale for refusing to reform judgments of conviction thus persisted in our case law until we came to decide Bowen.33 In Bowen, the appellant was charged with, and convicted by a jury of, “misapplication of fiduciary property owned by or held for the benefit of [another] for the value of $200,000 or more.”34 The court of appeals, while “conclud[ing] that the evidence was legally insufficient to prove that the misapplied assets ․ equaled $200,000 or more,” found that the evidence was sufficient to prove that the misapplied assets equaled $103,344.35 However, that court was, at the time it issued its opinion, “bound by Collier,” and so “did not reform the judgment to reflect a conviction for a lesser-included offense[,] because a lesser charge was not submitted to the jury.”36 With no other options available to it, the court of appeals ordered that the appellant be acquitted outright.37

This result, “[w]hile compatible with ․ Collier,” we nonetheless deemed on discretionary review to be “unjust.”38 We concluded that the “purpose” of the Collier rule, “which was to prevent the State from overreaching and having an unfair advantage over the defendant ․ has proved to be unworkable in practice and inapplicable in many instances.”39 We noted, significantly, that the Collier rationale “does not consider that the defense may also have a strategic reason to not request a lesser-included offense instruction,” in that “the defense may hope for outright acquittal” rather than a conviction for a lesser offense.40 We also observed that the Collier rule could operate to prevent judgment reformation in circumstances in which the State “requests a lesser-included offense, but the trial court does not submit the instruction”—and as the State could not be said to be “going for broke” in such circumstances, the “overreaching rationale” was “impractical[.]”41

In light of all of the shortcomings (unjustness, unworkability, inapplicability, and impracticality) attendant to refusing to reform convictions on the basis of either party's “overreaching,” both the holding of Collier (that the availability of reformation should depend either on the conduct of the parties at trial or the submission or non-submission of a lesser-included instruction) and its rationale (that the parties should not be rescued from their own “gamesmanship” or “overreaching”) were repudiated.42 Thus, post-Bowen, courts of appeals are no longer permitted to base their decisions whether to reform a judgment of conviction on either of these considerations. The focus is now on the evidence presented and the lesser-included conviction sought, rather than the parties' respective strategies in failing—or deciding whether—to seek an instruction at trial.

As a review of the preceding cases should make reasonably clear, nowhere in our case law, stretching back to Collier, has it ever been suggested that it is the failure to preserve error that would prevent a party from requesting that a judgment be reformed. But that seems to have been precisely the court of appeals's reasoning in this regard. To the contrary, our case law makes it clear that the availability of reformation turns upon the authority of the courts of appeals, rather than whether the parties took appropriate steps to invoke that authority. Prior to Bowen, we held that the courts of appeals were not authorized to intervene on behalf of “overreaching” parties. In Bowen, we removed this impediment to the authority of the courts of appeals. Accordingly, the State's “st[anding] idly by as the trial court denied Appellant's request for” a lesser-included instruction had no impact on the authority of the court of appeals to reform the judgment. The court of appeals retained that authority all along, and no procedural hurdle stood in the way of its exercising that authority. The court of appeals erred to suggest otherwise. If reformation is an appropriate remedy in a particular case (an issue to which we turn next), Bowen makes clear that it should be applied regardless of whether either party requested or contested—or whether the jury was actually given—an instruction on the lesser-included offense at trial. The State's first point of error is sustained.

B. The Applicability of Bowen to “Essential” Elements

We turn next to the holding of the court of appeals that “Bowen is clearly distinguishable from ․ this case and ․ is not relevant to our decision to acquit rather than reform the judgment to reflect a conviction as to the lesser-included offense of attempted tampering with evidence.”43 The court of appeals identified the rationale of Bowen to be that “[b]ecause the value of the property misapplied was merely an ‘aggravating element’ used to determine the degree of the offense, ․ the trial court should have reformed the judgment to reflect a conviction as to the lesser-included offense.”44 Applying this rationale to the facts of this case, the court of appeals reasoned that “[c]oncealment is not an ‘aggravating element’ of the offense of tampering with evidence, it is the very sine qu [a ] non of that offense. As such, Bowen has no application to the facts of this case and we are not bound to consider whether to reform Appellant's judgment [.]”45

1. Bowen v. State

The court of appeals correctly recognized that the facts underlying our decision in Bowen were that “the State failed to prove ․ an aggravating element of the offense, [but] proved the essential elements of the offense of misapplication of fiduciary property beyond a reasonable doubt.”46 But the court of appeals failed to properly discern the reasoning underlying our decision in Bowen—and it is the reasoning, rather than the facts, of Bowen that should decide its applicability to future cases. The reasoning of Bowen was that an outright acquittal under those circumstances would be “unjust,” since that result would involve “usurp[ing]” the “fact finder's determination of guilt.”47 In other words, Bowen directed courts of appeals to focus exclusively on what the jury actually found in the course of convicting the appellant of the greater offense and determined that to discount or disregard those sufficiently-evidenced findings would be mistaken.

Extrapolating from that reasoning, we think that the result avoided in Bowen (the outright acquittal of an appellant against whom the State had adequately carried its burden except with respect to the extent of an “aggravating element”) is no more “unjust” than an acquittal in any case in which the jury, by convicting the appellant of the greater-inclusive offense, necessarily (if implicitly) found every element necessary to convict him for the lesser-included offense. Any time the State carries its burden with respect to this lesser offense, and the jury, by its verdict, has necessarily found every constituent element of that lesser offense, the appellant would enjoy an “unjust” windfall from an outright acquittal.48 At the same time, courts of appeals should limit the use of judgment reformation to those circumstances when what is sought is a conviction for a lesser offense whose commission can be established from facts that the jury actually found. To do otherwise would be to usurp the jury's institutional function in the criminal justice system-to determine the facts. Reviewing courts should not, therefore, inquire as to (much less purport to find) what the jury could have found had it been tasked with making a finding that it was not originally asked to make; this would be inconsistent with Bowen's deference to jury determinations.49

As our recent opinion in Britain v. State makes clear, however, simply establishing that the jury's guilty verdict as to the greater offense also constitutes a jury finding of the elemental predicates for a conviction of the lesser offense is not necessarily sufficient to justify reformation under Bowen.50 In Britain, the appellant was convicted of manslaughter for her allegedly reckless handling of her step-daughter's medical emergency .51 The court of appeals in that case ordered that the appellant be acquitted, as there was “insufficient evidence that the appellant was aware of but consciously disregarded a substantial and unjustifiable risk” of death.52 On discretionary review, we rejected the State's argument that the court of appeals should have “reformed the verdict to the lesser-included offense of criminally negligent homicide,” because in our view the State had also failed to produce any “evidence concerning the standard of care an ordinary person should be held to or that showed the appellant should have been aware of the risk to [the step-daughter].”53 We cautioned that “an appellate court should not render a judgment of conviction for a lesser-included offense unless there is proof beyond a reasonable doubt of all elements of the lesser-included offense.”54 We noted that automatically reforming the judgment to a conviction for the lesser offense, without reviewing the sufficiency of the evidence to support the new conviction, ran the risk of allowing “whatever error led to the” conviction for the greater offense to also “extend to” the conviction for the lesser.55

In summary, then, after a court of appeals has found the evidence insufficient to support an appellant's conviction for a greater-inclusive offense, in deciding whether to reform the judgment to reflect a conviction for a lesser-included offense, that court must answer two questions: 1) in the course of convicting the appellant of the greater offense, must the jury have necessarily found every element necessary to convict the appellant for the lesser-included offense; and 2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, is there sufficient evidence to support a conviction for that offense? If the answer to either of these questions is no, the court of appeals is not authorized to reform the judgment. But if the answers to both are yes, the court is authorized—indeed required56 —to avoid the “unjust” result of an outright acquittal by reforming the judgment to reflect a conviction for the lesser-included offense.

2. Application

With these concepts in mind, we must determine whether the jury, in the course of finding the appellant guilty of actual tampering with evidence, necessarily found all of the elements of attempted tampering with evidence. A person commits the offense of tampering with evidence “if the person [,] ․ 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.”57 A person commits an attempt if, “with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”58 Synthesizing these statutory definitions, we conclude that the first prong of the reformation analysis described above can be answered in the affirmative only if the jury, by its verdict, must necessarily have found that, 1) knowing that an offense had been committed, and with 2) the specific intent to conceal the crack pipe,59 and 3) the specific intent to impair the availability of the crack pipe as evidence in a later investigation or proceeding, the appellant 4) did an act amounting to more than mere preparation that 5) tended but failed to result in concealment of the crack pipe.

With respect to the first three of these elements, we note that the jury explicitly found these to have been proven when it found the appellant guilty of actual concealment, and so we need not inquire as to whether the jury made an implied or logically-necessary finding as to either of them.60 Similarly, with respect to the fourth element, we have no difficulty in concluding that the jury must have found this predicate—element to attempted tampering—an act amounting to more than mere preparation—to have been proven, since it found that his intentional conduct succeeded in concealing the pipe.61

With respect to the fifth element—whether the actions of the appellant “tend [ed] but fail[ed]” to effect the commission of the offense intended—we note that under Section 15.01(c) of the Penal Code, “[i]t is no defense to prosecution for criminal attempt that the offense attempted was actually committed.”62 Thus, in inquiring whether the jury necessarily found that the appellant's conduct failed to effectuate concealment, we need not inquire as to what the jury could have found, had it been tasked with adjudicating the appellant's guilt as to attempted tampering. Instead, we need only note that, by operation of Section 15.01(c), the jury's finding of actual commission subsumes a finding that the appellant's conduct “tend[ed] but fail[ed]” to effect the commission of tampering with evidence. And in this sense, the jury must necessarily have found that the appellant's actions “tend [ed] but fail[ed].”63

Hence, in the course of convicting the appellant of tampering with evidence, the jury must necessarily (if implicitly) have found that, knowing that an offense had been committed, and with the dual specific intents to conceal the crack pipe and impair the availability of the crack pipe as evidence in a later investigation or proceeding, the appellant did an act amounting to more than mere preparation that tended but failed to result in concealment of the crack pipe. For this reason, the court of appeals erred to conclude that Bowen has no applicability to the facts of this case. The State's second point of error is sustained.

C. Sufficiency of the Evidence to Show Attempted Tampering

Having determined that the jury's guilty verdict as to tampering with evidence necessarily constitutes a finding that the appellant attempted to tamper with evidence, we turn now to the question of whether there is sufficient evidence to support a conviction for attempted tampering.64 The court of appeals decided that there is not, primarily on the basis that the State failed to point to any “evidence of a specific intent to conceal” the pipe rather than “merely ․ dispossess himself of it.”65 Finding the evidence to be legally sufficient to support a rational jury finding as to this element, we will reverse the court of appeals as to this holding as well.

In inquiring whether a conviction is supported by sufficient evidence, our task is to “determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.”66 The relevant question “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”67 Under our case law, “[v]iewing the evidence ‘in the light most favorable to the verdict’ ․ means that the reviewing court is required to defer to the jury's credibility and weight determinations[.]”68 We should take care, in other words, not to act as a “thirteenth juror” by overturning a jury's duly-delivered verdict simply because we “ ‘disagree’ with [that] verdict.”69

In this case, we are satisfied that the evidence, viewed in the light most favorable to the verdict, is sufficient to support a jury finding that the defendant harbored the specific intent to conceal the crack pipe and thereby impair its later availability as evidence. We discussed many of the issues relating to the sufficiency of evidence to show an actor's specific intent to commit an offense in Laster v. State.70 In Laster, the jury was presented with evidence that the defendant, while walking past a young girl and her brother on a non-secluded sidewalk, “put his arm around [the girl's] waist and tried to pull her away.”71 The jury was also able to read a written statement from the defendant about “the voices in my head [telling] me to grab the little girl.”72 On the basis of this evidence alone, the jury convicted the defendant of attempted aggravated kidnapping. We were called upon to review whether the evidence was “sufficient to prove that [the defendant] had the intent to hold or secrete [the victim] in a place where she was unlikely to be found.”73 In concluding that the evidence was indeed sufficient, we emphasized that, while “[c]ircumstantial evidence of intent must be reviewed with the same scrutiny as other elements of an offense,” we would no longer insist on “[e]xcluding every reasonable hypothesis of what the accused was thinking.”74 Importantly, “[a]s long as the verdict is supported by a reasonable inference, it is within the province of the factfinder to choose which inference is most reasonable.”75 In her dissenting opinion, Judge Cochran voiced a helpful insight that the majority did not contest: “[N]ot every grabbing or illegal restraint of a stranger ․ evinces an intent to kidnap.”76

Similarly, in cases of tampering with evidence, not every act of discarding an object evinces an intent to impair the availability of that object as evidence in a later investigation or proceeding. There may be cases in which the most inculpating inference the evidence would support is that the accused simply intended to dispossess himself of the object in order to more plausibly disclaim any connection to it.77 And while it is true that “it is within the province of the factfinder to choose which inference is most reasonable,”78 it is also true that any inference made by the jury must be supported by sufficient evidence.79 Unlike the court of appeals, however, in this case we believe that the inference of a specific intent to impair the pipe's availability as evidence is sufficiently supported by the evidence presented at trial.

First, the jury heard evidence that 1) the crack pipe was both made of glass and smaller than a pen, and 2) at the time of the alleged tampering, “[t]he sun was coming up.” We note that it would be reasonable for the jury to conclude that, if the circumstances were such that the appellant stood absolutely no chance of concealing the pipe from the officers, it is less likely that he would have formulated the intent to conceal the pipe from the officers. In other words, it is less likely (though not impossible) that the appellant would harbor a “conscious objective” to cause a result he knew to be impossible.80 Therefore, the reasonableness of the jury's inferences about the appellant's intent is informed (at least in some measure) by whether the jury could have reasonably inferred that the appellant believed that the pipe was, in fact, concealable.

From testimony about the pipe's material composition and size, the jury might reasonably have inferred that the pipe was lightweight and at least somewhat translucent; from testimony that “[t]he sun was coming up,” the jury might reasonably have inferred that the portion of the sidewalk where the appellant dropped the pipe was not particularly well-lit. Based on these facts, the jury might also reasonably have inferred that the appellant did, in fact, believe it possible to conceal the pipe from the police—even if it lay in the middle of the sidewalk.81 On the other hand, if the evidence alleged to have been concealed were, say, a neon pink bowling ball dropped at high noon, the jury would have had far less reason to accept an inference that the appellant intended to conceal the evidence from the police.

Second, when the State asked Roberts whether the appellant “stealthily reached in [to his pocket],” Roberts responded affirmatively.82 While not conclusive, testimony that the appellant had a “stealth[y]” demeanor as he attempted to dispose of the crack pipe would support a finding that he intended that the officers never notice the pipe. And while evidence of the appellant's “stealthi[ness]” in reaching for the pipe is not inconsistent with a simple intent to dispossess, it would be inappropriate to adopt this alternative “reasonable hypothesis” on the basis of evidence that could be interpreted—equally reasonably—in one of two ways.83 After all, we are tasked with viewing the evidence in the light most favorable to the verdict.

Lastly, the jury also heard evidence—on multiple occasions—that the appellant “palmed” the pipe as he removed it from his pocket. The State argued both at trial and on appeal that, in the brief amount of time that the appellant successfully hid the pipe from Roberts's view by “palming” it, the appellant had “conceal[ed]” the pipe, as that term is used in Section 37.09(d)(1) of the Penal Code. While we express no opinion as to whether the “palming” of evidence can constitute actual concealment, we do think that repeated testimony that the appellant “palmed” the pipe is probative evidence of an intent to conceal the pipe. The jury would not have been unreasonable in thinking that by “palming” the pipe, the appellant's actions betrayed a “conscious objective” to prevent the officers from ever noticing the pipe. It would also have been reasonable for them to discount the fact that Roberts never lost sight of the pipe, since the element currently under consideration is the appellant's mens rea—not his success (or lack thereof) at actual concealment.84

Having reviewed the evidence presented at trial and determined that the same is sufficient to support a rational jury finding that the appellant harbored the specific intent to conceal evidence, we conclude that there is sufficient evidence to support a conviction for attempted tampering with evidence.85 In light of this conclusion, we hold that the court of appeals erred to conclude that “no rational trier of fact could have found that Appellant attempted to conceal evidence of any kind.”86 The State's third point of error is sustained.

CONCLUSION

The court of appeals provided three independent justifications for refusing to reform the appellant's judgment of conviction to reflect a conviction for attempted tampering with evidence: 1) that the State “failed to preserve” the issue of reformation; 2) that Bowen “has no application to the facts of” the appellant's case; and 3) that the evidence presented at trial is “not legally sufficient to support a conviction of attempted tampering with evidence.”87 Each of these justifications fails to withstand scrutiny, and we therefore reverse the judgment of the court of appeals. The cause is remanded to the trial court to reform the judgment to reflect a conviction for the offense of attempted tampering with evidence and to hold a punishment hearing attendant to this post-reformation conviction.

In its sufficiency-of-the-evidence analysis, the court of appeals held that courts have construed the term “conceal” to mean “to hide, to remove from sight or notice, to keep from discovery or observation.”1 These definitions comport with definitions found in both legal and non-legal dictionaries.2 Whatever else “conceal” might mean in the context of the tampering with evidence statute, it at least means to remove from sight. And removal from a person's sight occurs, at least, when a person's line of sight to the object in question is blocked.

Under this definition of “conceal,” the evidence was sufficient to show that appellant had the specific intent to block the officers' line of sight to the crack pipe with his body when he stealthily palmed the crack pipe, dropped it, and walked forward to the officers. Although the court of appeals focused on Officer Roberts's testimony that the crack pipe never left his sight,3 Officer Roberts also testified that he could not see the pipe while it was in appellant's hand and that appellant had concealed it there. The jury could also have concluded from the following colloquy between Officer Roberts and defense counsel that appellant intended to block Officer Roberts's view of the pipe when he walked toward the officer:

Q. So him moving away from the pipe concealed it from you?

A. Yes, sir.

Q. But not from your vision?

A. I saw the area to where he was where he dropped it and—

Q. I'm looking in a dictionary, conceal means the removing from sight or notice. Does that sound like an accurate definition of conceal?

A. Yes, sir.

cMoreover, defense counsel elicited Officer Roberts's opinion that appellant's intent was to hide the crack pipe from the officer:

Q. Okay. And you're indicating to me and to this jury that you believe Mr. Thornton's intent was to hide that from you.

A. Yes, sir.

Q. And you're basing that on the fact that he dropped it in front of you and walked away from it?

A. Uh-huh.

This opinion regarding appellant's intent qualifies under Rule 701 as one that is “rationally based on the perception of the witness and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.”4

In addition, pursuant to a request from the defense attorney, Officer Roberts conducted a demonstration of how the crack pipe was dropped. In argument to the jury, one of the prosecutors stated, without objection, that the demonstration and the officer's testimony showed that appellant dropped the crack pipe “on the ground behind his leg.” Defense counsel disputed that interpretation in his jury argument, but there is no definitive evidence (such as a video or a “let the record reflect” statement by the trial court) of what exactly the demonstration showed. Absent definitive evidence that defense counsel's interpretation was indisputably correct, we must assume that the demonstration could rationally support a conclusion that appellant did indeed drop the crack pipe behind his body.

With these comments, I join the Court's opinion.

DISSENTING OPINION

I respectfully dissent. Appellant was undeniably guilty of the Class C misdemeanor of possession of drug paraphernalia. Little did he know that, by clumsily trying to abandon his crack pipe, he was setting himself up for a third-degree felony conviction for tampering with evidence, and, because of his priors, a sentence of 45 years' imprisonment. The Seventh Court of Appeals found the evidence insufficient to support the element of “concealment,” but this Court reforms the judgment to reflect the separate offense of “attempted” tampering with evidence and remands for a new punishment hearing. I think that this was a Class C offense from beginning to end. I disagree that evidence of a person throwing down contraband during a police pursuit or detention is sufficient, by itself, to constitute either concealment or attempted concealment for purposes of our tampering-with-evidence statute. That act of abandoning contraband demonstrates prior possession of it, not its concealment.1

Our tampering-with-evidence statute, Section 37.09 of the Penal Code, is based on the corresponding Model Penal Code provision, Section 241.7.2 According to the Tennessee Supreme Court, some twenty-nine jurisdictions have enacted statutes based on Section 241 .7.3 “Most, if not all, jurisdictions that utilize a version of Section 241.7 of the Model Penal Code have recognized that a defendant does not violate the statute when he or she merely ‘abandons' physical evidence of a street crime while running from police or fleeing the scene of the crime.”4

This case comes at a time when tampering or obstruction-of-justice laws are being “used increasingly against drug offenders who, in some fashion, attempt to destroy or conceal their drugs when being pursued by police.”5 But most states that have considered the matter have concluded that when

a defendant merely drops, throws down, or abandons drugs in the vicinity of the defendant and in the presence and view of the police, this conduct does not constitute concealment that will support an evidence-tampering or obstruction charge, or a conviction that is additional to and separate from the ongoing possessory offense.6

As the New Hampshire Supreme Court explained in holding that a juvenile did not “conceal” a cigarette pack for purposes of the tampering-with-evidence statute when he made eye contact with the police officer coming toward him,

The juvenile may have intended to make it less likely that the cigarette pack would be associated with him or come to Officer Covie's attention by ridding his hands of it and abandoning it in the crowded hallway. It is important, however, not to confuse the juvenile's intent with his physical actions. [The tampering statute] uses the term “conceals” to define the actus reus of the offense. In addition to the actus reus, the statute also requires proof of a culpable mental state—here, the juvenile's intent to “impair [the] verity or availability” of the evidence. That the juvenile may have intended to make it more difficult for Officer Covie to detect the contraband does not mean that the juvenile concealed the contraband when he abandoned it.7

Courts have also held that the same act of discarding contraband in the presence of police officers does not suffice to establish the offense of attempted tampering with evidence.8 These courts have expressed three rationales for their holding: (1) the defendant's act of discarding contraband in the presence of, and in view of, police is an act of abandonment, not concealment for purposes of the tampering statute;9 (2) the defendant's unsuccessful attempt to rid himself of contraband did not, in fact, impair its availability as evidence;10 and (3) the legislature surely did not intend that the defendant's act of discarding drugs—a felony offense if tampering with evidence—should be punished more severely than his offense of possessing those same drugs.11 As a Florida court explained, its legislature did not intend to impose additional felony charges on a person who discards a misdemeanor amount of contraband while being observed by pursuing police officers:

If the defendants' [conduct] in this case constituted tampering [with evidence], then a nineteen-year-old who threw a can of beer from his car when stopped by a police officer would commit not only the second-degree misdemeanor of possession of alcoholic beverages, but also the third-degree felony of tampering with the evidence. We do not believe that the legislature intended an additional felony under such circumstances.12

Many of these cases hold that the evidence is insufficient to support a tampering conviction because there is no evidence that the defendant specifically intended to conceal evidence with the intent to impair its usefulness at a future trial. Instead, the evidence shows that the defendant merely intended to distance himself from the evidence. As in “What? Who me? That's not my crack pipe.”13 As Justice Yeakel explained in Hollingsworth v. State,14 the evidence was insufficient in that case to prove that the defendant was carrying cocaine in his mouth with the specific intent to impair its availability as evidence. Rather, he was carrying it in mouth “because that is how crack cocaine is commonly carried, undoubtedly to keep it from public view.”15 When the defendant saw police officers, he spit it out-an act that exposed the cocaine to the officer's view.16 In most of these abandonment cases, the defendant's act of abandonment exposes, rather than conceals, the contraband.

Prosecutions for attempted tampering with the evidence are even more untenable. I agree with the court of appeals in this case that the claim that appellant's act of “ ‘palming’ ․ the pipe to remove it from his pocket constituted attempted concealment” requires total speculation about whether appellant acted with the specific intent to conceal the pipe or just abandon it.17 “Without evidence of a specific intent to conceal, Appellant's merely reaching into his pocket and removing the pipe is no more attempted concealment than having a drink is attempted public intoxication.”18 Appellant's act exposed the crack pipe, so how can a jury determine, beyond a reasonable doubt, that he specifically intended to conceal the crack pipe by that act of exposure? This logic escapes me.

The Tennessee Supreme Court recently explained that a tampering-with-evidence conviction may not be upheld if the evidence was not permanently altered or destroyed and its concealment delayed minimally, if at all, the officers' discovery of it:

In drug cases, for example, convictions for tampering by concealment have been upheld when a defendant swallows drugs and when a defendant flushes drugs down a toilet as police approach and the drugs are recovered. One defendant's conviction was upheld when he tossed the drugs out of his moving vehicle, kept driving for a half mile, and the drugs were never found. Another defendant's conviction was upheld when he tried to hide his drugs in one pocket of a billiards table.

Conversely, in other drug cases involving alleged concealment, courts have found mere abandonment when a defendant hides drugs in his socks or in his pocket, tosses drugs onto the roof of a garage while being pursued, drops drugs off a roof in view of police, or throws drug evidence over a wooden privacy fence while officers are in pursuit. Dropping a marijuana cigarette into a sewer is mere abandonment, but dropping soluble drugs down a sewer drain could make them irretrievable and could support a tampering conviction. Hiding drugs in one's mouth without successfully swallowing them also may not constitute tampering.19

For these reasons, I agree with those courts holding that, with regard to possessory offenses, the tampering-with-evidence statute applies only to

(A) completed crimes in which the evidence is permanently destroyed, altered, or concealed.20 For example, if a defendant swallows the purported contraband, he has destroyed its usefulness as evidence; because the evidence is gone, the defendant cannot be convicted of the drug offense, but he can be convicted of tampering with evidence; 21 OR

(B) The attempted destruction, alteration, or concealment has materially impeded the officer's investigation. For example, if the defendant tosses bags of cocaine down the toilet and flushes it, but the police are able to disconnect the plumbing and retrieve the soggy, but identifiable baggies, the defendant's act of concealment was unsuccessful, but it materially impeded the officers.

I respectfully dissent to turning this Class C misdemeanor into a state-jail felony merely because appellant tried to abandon his crack pipe by exposing it to the officers' view, not concealing from their view.

DISSENTING OPINION

I respectfully dissent from the majority opinion's holding that the judgment in this case should be reformed from tampering with physical evidence to a criminal attempt to commit that offense. Although I recognize that criminal attempt is, as a matter of law, characterized as a lesser-included offense of any statutory offense, it is unlike other lesser-included offenses in that it contains an additional element not found in the greater offense: the specific intent to commit an offense. Because the jury, in finding Gregory Thornton, appellant, guilty of the offense of tampering with physical evidence, did not necessarily find that he acted with the specific intent to conceal evidence from officers, I conclude that the judgment should not be reformed to a conviction for criminal attempt. As explained further below, I conclude that reformation of a judgment to criminal attempt does not fit within the reasoning of this Court's past decisions that discuss when reformation to a lesser offense is permissible. I further conclude that the appropriate resolution of this case is outright acquittal or, at most, a remand for a trial on criminal attempt, rather than the rendition of judgment reforming the conviction to criminal attempt.

I. Reforming to Criminal Attempt Does Not Fit Within Rationale For Permitting Reformation of Judgments

Permitting reformation of the judgment to criminal attempt is inconsistent with the rationale underlying the law in this area, which is that an appellate court must defer to the jury's institutional role as fact finder and reform a judgment only when it is clear from the jury's verdict that it necessarily found the defendant guilty of a lesser-included offense based on sufficient evidence. I joined the majority opinions in Bowen v. State and Britain v. State, both of which generally stood for the proposition that reformation of the judgment is proper when, although the evidence is deemed insufficient as to some element of the charged offense, the State has nevertheless proved all the elements of a lesser-included offense beyond a reasonable doubt. See Britain v. State, 412 S.W.3d 518, 521 (Tex.Crim.App.2013); Bowen v. State, 374 S.W.3d 427, 431–32 (Tex.Crim.App.2012). And I remain convinced that those holdings were correct in their ultimate application of that general proposition. Where I part ways with the Court's opinion today is in its expansion of this general holding to now reform a judgment to a lesser-included offense that is not merely different from the greater due to the absence of an aggravating element or an element that may be clearly isolated, but is instead a criminal attempt to commit the greater offense. Under the circumstances of this case, it is not clear to me that the jury necessarily found or that the State proved all the elements of criminal attempt to commit evidence tampering beyond a reasonable doubt. Applying the reasoning of Bowen and Britain to this case, I conclude that those cases do not compel reformation of the judgment here.

In Bowen, this Court held that the court of appeals erred by entering a judgment of acquittal when the evidence adduced at trial, although insufficient to establish Bowen's conviction for misapplication of $200,000 or more in fiduciary property, was nevertheless sufficient to sustain her conviction for the second-degree offense of misapplication of fiduciary property valued over $100,000. Bowen, 374 S.W.3d at 431–32. In holding that reformation was required under those circumstances, the Court reasoned that acquittal would be “improper” and “unjust” because, “although the State failed to prove the value of the property misapplied, which is an aggravating element of the offense, the State proved the essential elements of the offense of misapplication of fiduciary property beyond a reasonable doubt.” Id. at 432. This Court additionally observed that the “fact finder's determination of guilt should not be usurped in the punishment phase if the evidence is legally sufficient to support a conviction.” Id.

When the evidentiary failure at trial involves only an aggravating element, such as the State's failure to prove a particular dollar amount or drug amount, an appellate court is not called upon to act as a thirteenth juror, examining the details of the record to surmise how the jury may have assessed certain evidence. Under those circumstances, it would clearly be “unjust” and would constitute a usurpation of the jury's institutional role as fact finder to acquit a defendant who is indisputably guilty of the lesser offense. Id. at 431–32. By contrast, to determine whether a defendant has criminally attempted to commit an offense for which the evidence has already been deemed insufficient as to a central or essential element, as in the instant case, an appellate court must conduct a complete review of the record in an effort to determine whether the jury necessarily found, and whether the evidence clearly establishes, that the defendant took steps amounting to “more than mere preparation” to commit the offense while possessing the specific intent to commit that offense. See Tex. Penal Code § 15.01(a). This type of reformation of the judgment to criminal attempt is inconsistent with the rationale of Bowen, a case in which this Court reformed the judgment only when it was abundantly clear from the jury's verdict that it necessarily found the defendant guilty of the lesser-included offense and that the evidence was sufficient to establish that offense.

More recently, in Britain, this Court applied the reasoning of Bowen but reached the opposite result, holding that reformation to a lesser-included offense was not required. See Britain, 412 S.W.3d at 521. In Britain, the court of appeals acquitted the defendant after it found insufficient evidence to sustain her manslaughter conviction based on the State's failure to prove that she acted recklessly. Id. at 519. On discretionary review, the State argued that the court of appeals erred by failing to reform the conviction to the lesser-included offense of criminally negligent homicide, but this Court disagreed. Id. at 521. After reviewing the evidence in the record, this Court concluded that reformation would be improper because the State had failed to prove the elements of the lesser-included offense beyond a reasonable doubt. Id. at 522–23. Specifically, it determined that the State had failed to prove that the defendant acted with negligence, the applicable mental state for criminally negligent homicide. Id. at 523.

This Court cautioned in Britain that an appellate court considering whether to reform a judgment must take great care to ensure that “whatever error led to the” reversal on sufficiency grounds “did not extend to the entire evaluation of” that element of the offense. Id. at 522. Explaining its approach in that case, the Court stated,

It is much easier to say that the lesser-included offense has been proven in cases in which the evidence is legally insufficient only as to an aggravating element, as in Bowen. ․ In that case, it was easy for the Court of Appeals to render a verdict for the lesser-included offense because there was no question that the essential elements of the lesser crime were proven․

In this case, the State has failed to prove an essential element, something that cannot be merely eliminated from the conviction. In such cases an appellate court should not render a judgment of conviction for a lesser-included offense unless there is proof beyond a reasonable doubt of all elements of the lesser-included offense. ․

Id. at 521 (emphasis added). The difficult question before us today is how Britain's cautionary language might apply to a situation involving a request by the State to reform a judgment to a criminal attempt. In the present case, the decision to reform the judgment to criminal attempt requires this Court to consider whether the evidence is sufficient to find that appellant attempted to conceal a glass crack pipe by doing an act (e.g., palming the pipe and dropping it on the ground), that was more than mere preparation to conceal but less than an effective concealment of the pipe, all while keeping in mind that the evidence has already been deemed insufficient to show that appellant actually concealed the crack pipe. This is an odd task and, in terms of the required analysis, I find that this case raises many of the concerns that were present in Britain because of the risk of the evidentiary error at trial extending to the elements of the lesser offense. Moreover, it is not clear to me that the rationale that motivated this Court's holding in Bowen—that the portion of a jury's verdict that is clearly correct should not be unjustly usurped through acquittal—weighs in favor of reformation under these circumstances, where the jury's verdict has already been critically undermined by the appellate court's finding of insufficiency as to the element of concealment.

In light of the concerns described above, I would hold that this Court should narrowly limit reformation to situations in which (1) the evidentiary failure at trial does not extend to the elements of the lesser-included offense (this was decided by Britain ), (2) the remaining elements clearly establish a lesser offense either by simply removing the element determined to have insufficient evidence or by determining that there is, even after accounting for the sufficiency error at trial, proof beyond a reasonable doubt to sustain a conviction on the lesser offense (this was decided by Bowen and Britain ), and (3) the record shows that the jury made a factual finding rather than a theoretical finding on all the elements of the lesser offense to which the judgment will be reformed (this is the issue in this case). Here, the first situation compels this Court to decline to reform the judgment to criminal attempt because, as in Britain, the evidentiary failure on the greater offense spills over into the evidence necessary for a finding of guilt on the lesser offense. But, in any event, the third situation would, at most, compel this Court to remand the case for a trial on criminal attempt because the record does not establish that the jury found all the facts necessary to establish the offense of criminal attempt when it found appellant guilty of the greater offense.

My proposed approach to reformation of the judgment is consistent with that taken by the federal courts of appeals, which have long employed a rule that permits “entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense.” Rutledge v. United States, 517 U.S. 292, 306, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (emphasis added); see also United States v. Baylor, 97 F.3d 542, 548 (D.C.Cir.1996) (same).1 Stated differently, the “long accepted” federal rule

grants a reviewing court authority to enter judgment on a lesser included offense when it finds that those elements exclusive to the greater ․ are not supported by sufficient evidence to sustain the jury's verdict, but that there is sufficient evidence to sustain a finding of guilt on all elements of the lesser offense.

United States v. Dickinson, 706 F.2d 88, 93 (2d Cir.1983) (emphasis added); see also United States v. Rojas–Alvarez, 451 F.3d 320, 328 (5th Cir.2006) (recognizing that the circumstances in which such authority may be exercised are “limited” and that it must be clear that the evidence “sufficiently sustains all the elements of [the lesser] offense”) (citations omitted); United States v. Skipper, 74 F.3d 608, 611–12 (5th Cir.1996) (stating that reformation of judgment permitted only when jury “necessarily found all of the elements” of lesser-included offense).2 This approach generally limits an appellate court's authority to reform a judgment to those situations in which the lesser offense is unaffected by the error that led to reversal of the greater offense.3 Such an approach takes account of the fact that, as this Court recognized in Bowen, it would be “unjust” to acquit a defendant who is clearly guilty of the lesser-included offense, and that the jury's guilty verdict should not be unnecessarily usurped. Bowen, 374 S.W.3d at 432. But it also recognizes that appellate courts are not well-suited to making factual determinations based on a weighing of evidence in the record, particularly with respect to questions that have not been expressly answered by the jury. These are the types of factual inquiries that are better left to juries at trial, and cannot reliably or fairly be answered by a reviewing court on appeal.

II. At Most, This Case Should be Remanded for Trial on Criminal Attempt

I conclude that an appellate court should almost never reform a judgment to a criminal attempt because, in rendering a verdict of guilt on the greater offense, the jury has not found all the elements necessary to constitute a conviction for criminal attempt.4 Although I acknowledge that the Texas Code of Criminal Procedure classifies criminal attempt as a lesser-included offense of any charged offense,5 this Court's precedents and the Rules of Appellate Procedure do not mandate that a conviction reversed on sufficiency grounds be automatically reformed to any available lesser-included offense. See Britain, 412 S.W.3d at 521 (acknowledging that Bowen held that “a court of appeals may reform a judgment to a lesser-included offense,” but stating that this Court has never held “that the court of appeals must do so”); Tex.R.App. P. 43.2 (stating that court of appeals “may” modify the trial court's judgment or reverse and render the judgment that the trial court should have rendered).6 Instead, these authorities clearly permit an appellate court to forego reformation of the judgment when, among other things, the “interests of justice require a remand.” Tex.R.App. P. 43.3. With the exception of criminal attempt, I conclude that the other three categories of lesser-included offenses described in Code of Criminal Procedure Article 37.09 will almost always lend themselves to reformation of the judgment because in those situations, the evidentiary failure will likely be isolated to a single element of the greater offense that can easily be excised. For example, if the greater offense consists of five elements, and there is an evidentiary failure as to the fifth element, then the judgment may be reformed to the lesser offense that is established by the remaining four elements. This type of determination can be made by an appellate court as a matter of law and does not require an extensive review of the record to determine whether the jury necessarily found all the elements of the lesser offense. By focusing on a narrow difference between the greater and lesser offenses that can be isolated in the record, these situations lend themselves to reformation of a judgment as a matter of law.

By contrast, although the Code of Criminal Procedure expressly provides that a criminal attempt is a lesser-included offense of any charged offense, there is a conflict between that determination and the language in the Texas Penal Code, which provides that a person commits criminal attempt if he, with the specific intent to commit an offense, does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. See Tex. Penal Code § 15.01(a). The language of the criminal-attempt statute thus contains an added element not found in the greater offense: the specific intent to commit an offense. Id . In light of this conflict between the Code of Criminal Procedure and the Penal Code, I conclude that the judgment must either be rendered and reformed to an acquittal or, at most, remanded for a trial on criminal attempt in the interests of justice because the jury would have never passed on the question of whether the defendant acted with the specific intent to commit an offense. Id. In any event, I note that making reformation mandatory in these cases runs contrary to the principle that an appellate court is authorized to determine whether remand would be more appropriate than rendering judgment in any given case. See Tex.R.App. P . 43.3 (appellate court permitted to remand when “necessary for further proceedings” or when “interests of justice” so require).

The quandary of reforming a judgment to criminal attempt is reflected in the majority opinion's holding today, which concludes that reformation of the judgment is required here, in part, because the jury would have necessarily found every element of criminal attempt in finding appellant guilty of evidence tampering. I disagree with that conclusion because, as discussed above, the offense of criminal attempt to tamper with physical evidence requires proof of the “specific intent to commit” evidence tampering, which is an additional element not found in the evidence tampering statute. To establish the offense of tampering with physical evidence, the evidence must show that the defendant,

1. “knowing that an investigation or official proceeding is pending or in progress,”

2. “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.”

Tex. Penal Code § 37.09(a)(1). In describing the elements of tampering with evidence in this case, the trial court instructed the jury, as follows:

[I]f you find from the evidence beyond a reasonable doubt that ․ the defendant ․ did then and there, knowing that an offense had been committed, to wit: Possession of Drug Paraphernalia, intentionally and knowingly conceal physical evidence, to wit: glass pipe with intent to impair the availability of glass pipe as evidence in a subsequent investigation, or official proceeding related to said offense, then you will find the defendant guilty of the offense of tampering with evidence[.]

(Emphasis added). In contrast to the elements of tampering with evidence, to establish a criminal attempt, the evidence must show that the defendant

1. acted “with specific intent to commit an offense,” and

2. did an “act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”

Tex. Penal Code § 15.01(a). Applying those elements to the elements of tampering with evidence, the jury instruction for criminal attempt would have read as follows:

If you find from the evidence beyond a reasonable doubt that the defendant did then and there, knowing that an offense had been committed, to wit: Possession of Drug Paraphernalia, acted with the specific intent to commit the offense of tampering with evidence, including the specific intent to conceal the physical evidence, namely, a glass pipe, with the specific intent to impair the availability of the glass pipe as evidence in a subsequent investigation or official proceeding, and he did an act amounting to more than mere preparation that tended but failed to effect the commission of the offense intended.

Both offenses of tampering with physical evidence and criminal attempt identically require the jury to find that appellant (1) knew that an offense had been committed, to wit: possession of drug paraphernalia, and (2) intended to impair the availability of the glass pipe as evidence. But criminal attempt also requires the jury to find that the defendant acted with specific intent to commit “an offense,” which, in this case, adds an extra element that he specifically intended to conceal the glass pipe. No determination was made by the jury as to that element. The majority opinion suggests that a jury finding that appellant intended to impair the availability of the glass pipe as evidence is essentially the same as a finding that he acted with the specific intent to conceal the physical evidence, namely, a glass pipe. But the specific intent to conceal is a different factual question. A person may intend to impair the availability of a pipe as evidence by destroying it, altering it, or concealing it, and a finding by the jury that appellant acted with the specific intent to impair the availability of the pipe as evidence does not mean that it decided that appellant had the specific intent to conceal the pipe, particularly in light of the court of appeals's determination that the evidence is legally insufficient to establish that he concealed it. The position adopted by the majority opinion requires an appellate court, acting as the thirteenth juror, to decide in the first instance whether appellant acted with the specific intent to conceal the physical evidence and whether he did an act that amounted to more than mere preparation that tended but failed to effect the commission of the offense intended.

Although it is true that criminal attempt can be a lesser-included offense of a charged offense, I note that this Court and Texas courts of appeals have, in some circumstances, declined to permit a jury instruction on criminal attempt. The Amarillo Court of Appeals explained the law as follows:

There are instances in which courts have found the inconsistency between the “specific intent to commit an offense” requirement in the criminal attempt statute and the elements of a particular attempted offense precluded its use as a lesser-included offense under article 37.09(4). See Gonzales v. State, 532 S.W.2d 343, 345 (Tex.Crim.App.1976) (instruction on attempted voluntary manslaughter properly denied as lesser-included offense of attempted murder; involuntary manslaughter negates specific intent to kill); Yandell v. State, 46 S.W.3d 357, 361 (Tex.App.-Austin 2001, pet. ref'd) (deadly conduct not lesser-included offense of manslaughter under art. 37.09(4); “it is impossible to specifically intend to recklessly kill another”). In its analysis in one such situation, the court in Strong v. State, 87 S.W.2d 206 (Tex.App.-Dallas 2002, pet. ref'd), pointed out that because the offense of driving while intoxicated has no culpable mental state, the attempt statute cannot apply to DWI.

Heller v. State, 347 S.W.3d 902, 904 (Tex.App.-Amarillo 2011, no pet.). From this discussion, it is apparent that a great amount of precedent indicates that criminal attempt, though generally a lesser-included offense under the law, is unlike other types of lesser-included offenses because of the additional element requiring a specific intent to commit an offense. See id.

I recognize that in Bowen this Court decided that a jury instruction on a lesser offense was no longer a prerequisite for appellate reformation of a judgment, but this Court should not create a situation where reformation would be permitted if there were no jury instruction but not permitted if there had been a jury instruction. To this end, this Court should consistently apply the law on lesser-included offenses as described by Hall v. State, a case in which this Court determined that the first step in determining whether the jury may be instructed on a lesser-included offense is done by “comparing the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser-included offense.” Hall v. State, 225 S.W.3d 524, 535–36 (Tex.Crim.App.2007). This Court expressly held that the “pleadings approach is the sole test for determining in the first step whether a party may be entitled to a lesser-included-offense instruction.” Id. at 535. In light of Hall, it is clear that an offense could theoretically be a lesser-included offense under a broadly worded statutory comparison of the elements of the lesser and greater offenses. But that does not mean that an offense is always a lesser-included offense of the charged offense because that determination can be made only by comparing the pleadings in the indictment or information, which may have modified the elements of the greater offense, to the elements of the lesser offense. Id. This Court held that, by “analyzing the statutory elements of the offense as they were modified in the indictment, the assault by threats was not included within the allegation of murder.” Id. at 537. Here, the indictment and jury instructions permitted the jury to convict appellant based on evidence that he acted knowingly in concealing the physical evidence. Perhaps the pleadings alleging the greater offense could have been modified to require the jury to find that appellant intentionally concealed the physical evidence, thereby pleading the same mental state for the greater and lesser offenses, but these pleadings failed to do that by requiring only a mental state of knowing concealment for the greater offense. In reforming this judgment to criminal attempt, this Court is applying a different standard for consideration of lesser offenses when an instruction on a lesser offense is not given than when it is given, which was precisely the problem this Court was attempting to correct when it decided Bowen .

In light of the pleadings and jury charge here, it is clear that the jury, in finding appellant guilty of evidence tampering, would have necessarily found that he intended to impair the availability of the crack pipe as evidence. But that is not necessarily the same thing as finding that appellant harbored the “specific intent to commit” the offense of evidence tampering, including the intent to conceal the crack pipe from police officers. This Court has held in the context of the criminal attempt statute that the “specific intent” to commit an offense requires a finding that the defendant specifically intended to bring about a particular result. See, e.g ., Chen v. State, 42 S.W.3d 926, 929 (Tex.Crim.App.2001); Yalch v. State, 743 S.W.2d 231, 233 (Tex.Crim.App.1988); Flanagan v. State, 675 S.W.2d 734, 741 (Tex.Crim.App.1984) (“element ‘with specific intent to commit an offense’ has traditionally been interpreted to mean that the actor must have the intent to bring about the desired result”). Here, the jury made no such affirmative finding that appellant desired to bring about the concealment of the crack pipe. Because the jury did not implicitly find all the elements of criminal attempt in rendering its verdict of guilt on the tampering charge, I disagree with the majority opinion's conclusion that reformation is required here. See Tex. Penal Code §§ 15.01(a); 37.09; Bowen, 374 S.W.3d at 431–32.7

This Court should hold that, although criminal attempt is a lesser-included offense of any charged offense, it is ordinarily inappropriate to reform the judgment to criminal attempt because the jury's verdict does not necessarily encompass a finding that the defendant acted with the specific intent to commit the greater offense. The adoption of such a bright-line rule would prevent courts of appeals from engaging in improper speculation in these cases while affording adequate deference to the jury's institutional role as fact-finder.

III. Conclusion

Because I view the approach taken by the majority opinion as constituting an unwise expansion of this Court's holding in Bowen, I respectfully dissent. I would hold, generally, that reformation of the judgment should be limited to situations in which the underlying sufficiency error does not extend to the lesser-included offense, and in which an appellate court can clearly isolate the element affected by the sufficiency error and evaluate the remaining evidence to determine whether the jury necessarily found all the elements of the lesser offense beyond a reasonable doubt. Applying those principles to the facts of this case, I conclude that reformation of the judgment to criminal attempt is improper here. I would, therefore, affirm the judgment of the court of appeals.

PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and WOMACK, KEASLER, and HERVEY, JJ., joined.

KELLER, P.J., filed a concurring opinion.COCHRAN, J., filed a dissenting opinion in which MEYERS and JOHNSON, JJ., joined.ALCALA, J., filed a dissenting opinion in which MEYERS, JOHNSON, and COCHRAN, JJ., joined.ALCALA, J., filed a dissenting opinion in which MEYERS, JOHNSON, and COCHRAN, JJ., joined.

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