THE STATE OF TEXAS v. MARY ZUNIGA

Reset A A Font size: Print

Court of Criminal Appeals of Texas.

THE STATE OF TEXAS v. MARY ZUNIGA, Appellee

NO. PD-1317-15

Decided: March 08, 2017

NEWELL, J., delivered the opinion of the Court, in which ALCALA, RICHARDSON, YEARY, KEEL AND WALKER, J.J., joined. YEARY, J. filed a concurring opinion, in which WALKER, J., joined. KELLER, P.J., filed a dissenting opinion, in which KEASLER AND HERVEY, J.J., joined.

When the State charges someone with tampering with physical evidence, is the specific identity of the tampered-with evidence an essential element of the offense? We agree with the State and the court of appeals that it is not. State v. Zuniga, 13-14-00316-CR, 2015 WL 4381064, at *3 (Tex. App.—Corpus Christi July 16, 2015) (mem. op.) (not designated for publication). However, the court of appeals does not appear to have addressed whether the language in the indictment provided adequate notice of the charged conduct, so we remand the case to give them an opportunity to do so.

Facts

A police officer pulled Zuniga over after she ran a stop sign in front of her home. During the stop, the officer observed a bottle of medicine in Zuniga's vehicle. When Zuniga was unable to produce a valid prescription for the syrup, the officer arrested her and placed her in the back of his police car. Soon after, the officer observed Zuniga reach into her groin area and pull something out with her hands cupped. The officer then observed Zuniga move her hands towards her mouth and lean her head down as if to swallow “something.”1 The officer took Zuniga to the hospital where medical professionals pumped Appellee's stomach and performed an x-ray. They did not find any illegal substance or a baggie. The State neither tested the results of Appellee's stomach purge for an illegal substance nor requested any testing of her blood.

The State indicted Zuniga on tampering with physical evidence.2 This count in the indictment appeared as follows:

Tabular or graphical material not displayable at this time.

Originally, the State did not allege what Zuniga had attempted to “alter, destroy, or conceal.” It merely left a blank space in the indictment. Zuniga filed a “Motion to Quash and Exception to Form of the Indictment.” During the hearing on that motion, the State made the handwritten notation—“unknown substance”—on the indictment itself. Zuniga amended her motion to quash in light of the State's amended pleading.

Zuniga argued that the indictment failed as a matter of both form and substance. Specifically, she complained that the indictment failed to set forth the offense in plain or intelligible language and that the indictment failed to allege two necessary elements of the offense. Finally, she argued that the indictment did not adequately inform her of the act(s) the State intended to rely upon to constitute the crime of tampering with evidence.

The State responded at the hearing that the State was not required to allege the specific identity of the tampered-with evidence because Zuniga's commission of the offense rendered that evidence unidentitifiable. Then, the State argued that the elements of the offense only required it to prove that Zuniga altered, concealed, or destroyed some “thing.” According to the State, whether that “thing” amounted to evidence could be proven through the circumstances of its destruction. In other words, the State appeared to argue that the identity of the tampered-with evidence was an evidentiary matter that did not have to be pleaded in the indictment.

The trial court saw two problems with the State's case. First, the trial court explained that the State was required to give more notice than simply alleging a “thing.” Second, the trial court expressed concern that the State had to prove that Zuniga knew an investigation was pending. After a break in the hearing, the trial court granted Zuniga's motion to quash, stating that “the requirements of 21.02 of the Texas Code of Criminal Procedure had not been met.” The trial court further held that the indictment failed to inform the defendant of the acts that the State would rely upon to constitute the crime of tampering.

The Appeal

The State appealed the trial court's ruling. The State argued that it was not required to allege the specific identity of the tampered-with evidence in the indictment because it would not be required to prove that fact in order to secure a conviction. According to the State, the “thing” tampered with was not an element of the offense that needed to be pleaded; it was merely an evidentiary matter that the State was not required to allege in the indictment. In other words, the State argued that the specific identity of the tampered-with evidence was not an element of the offense.

Zuniga replied that simply adding “an unknown substance” as the object of a tampering charge did not provide her with sufficient notice of what she was alleged to have tampered with in violation of the law. She argued that the indictment was insufficient because it failed to provide any description of the “thing” she was alleged to have tampered with. Consequently, Zuniga argued the notice in the indictment did not adequately inform her of the acts the State would rely upon to prove that she had committed the crime because the State had not alleged the evidence she had purportedly destroyed.

The court of appeals framed the issue in the case as a matter of determining whether an “unknown substance” can be a “thing” under the tampering statute. Zuniga, 2015 WL 4381064 at *2. As the court of appeals phrased it:

We are asked to determine whether an “unknown substance” can be a “thing” under section 37.09 of the penal code such that an indictment alleging the same complies with the constitutional notice requirements and the Texas Code of Criminal Procedure.

Id. The court of appeals properly set out the law regarding Zuniga's right to notice of pending criminal charges. Id. It also correctly observed that generally, when an indictment tracks the language of a penal statute, it will satisfy constitutional and statutory requirements. Id.

The court of appeals analyzed the elements of the offense set out in the tampering statute and determined that the identity of the physical evidence at issue was not an element of the offense. Zuniga, 2015 WL 4381064 at *2. According to the court of appeals, the “identity of the putative evidence destroyed will be relevant at trial ․ not because it is an element of the offense, but because it is evidence of intent.” Id. at *3. Because it was not an element of the offense, the court of appeals held that the specific identity of the tampered-with evidence did not need to be pleaded in the indictment. Id.

We granted discretionary review to determine whether the addition of the term “unknown substance” is sufficient to apprise a defendant of what “thing” the State intended to prove was altered, concealed, or destroyed. We agree with the court of appeals' determination that the specific identity of the tampered-with evidence is not an element of the offense. But we remand the case to allow the court of appeals to address whether the statutory language is completely descriptive of the proscribed conduct such that it provided adequate notice.

Standard of Review

The sufficiency of the indictment presents a question of law. Smith v. State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). Appellate courts review a trial judge's rulings on a motion to quash a charging instrument de novo. State v. Barbernell, 257 S.W.3d 248, 251-52 (Tex. Crim. App. 2008). The trial court's ruling should be upheld if it is correct under any theory of law applicable to the case. State v. Rhinehart, 333 S.W.3d 154, 161 (Tex. Crim. App. 2011) (applying ordinary rules of procedural default to a State's appeal of a trial court's order quashing the indictment).

The Texas and United States Constitutions grant a crim inal defendant the right to fair notice of the specific charged offense. U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10; TEX. CONST. art. V, § 12b; Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007); see also State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008). “The charging instrument must convey sufficient notice to allow the accuse to prepare a defense.” Curry v. State, 30 S.W.3d 394, 398 (Tex. Crim. App. 2000) (citing State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998)). Toward that end, Chapter 21 of the Texas Code of Criminal Procedure governs charging instruments and provides legislative guidance concerning the requirements and adequacy of notice. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); Ferguson v. State, 622 S.W.2d 846, 849-50 (Tex. Crim. App. 1981)(opinion on reh'g).

With respect to indictments, Article 21.02 sets out what facts must be included in an information and states, in part, that “[t]he offense must be set forth in plain and intelligible words.” TEX. CODE CRIM. PROC. ANN. art. 21.02(7) (West 2010). Article 21.03, provides that “[e]verything should be stated in an indictment which is necessary to be proved.” TEX. CODE CRIM. PROC. ANN. art. 21.03 (West 2010). Finally, Article 21.04 provides that “[t]he certainty required in an indictment is such that will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.” TEX. CODE CRIM. PROC. ANN. art. 21.04 (West 2010). An indictment is sufficient if it

charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment[.]

TEX. CODE CRIM. PROC. ANN. art. 21.11 (West 2010).

We have recognized that in most cases a charging instrument that tracks the statutory text of an offense is sufficient to provide a defendant with adequate notice. Barbernell, 257 S.W.3d at 251; Lawrence, 240 S.W.3d at 916; Curry, 30 S.W.3d at 398. When a statutory term or element is defined by a statute, the charging instrument does not need to allege the definition of the term or element. Barbernell, 257 S.W.3d at 251; Geter v. State, 779 S.W.2d 403, 405 (Tex. Crim. App. 1989). Typically the definition of terms and elements are regarded as evidentiary matters. Marrs v. State, 647 S.W.2d 286, 289 (Tex. Crim. App. 1983); see also Curry, 30 S.W.3d at 398.

But in some cases, a charging instrument that tracks the statutory language may be insufficient to provide a defendant with adequate notice. Barbernell, 257 S.W.3d at 251; Curry, 30 S.W.3d at 398. This is so when the statutory language fails to be completely descriptive. Barbernell, 257 S.W.3d at 251; Curry, 30 S.W.3d at 398. For example, a statute which uses an undefined term of indeterminate or variable meaning requires more specific pleading in order to notify the defendant of the nature of the charges against him. Mays, 967 S.W.2d at 407. Likewise, when a statute defines the manner or means of commission in several alternative ways, an indictment will fail for lack of specificity if it neglects to identify which of the statutory means it addresses. Id.; see also Barbernell, 257 S.W.3d at 251 (“The statutory language is not completely descriptive ‘when the statutes define a term in such a way as to create several means of committing an offense, and the definition specifically concerns an act or omission on the part of the defendant.’ ”) (quoting Solis v. State, 787 S.W.2d 388, 390 (Tex. Crim. App. 1990)). In such cases, more particularity is required to provide adequate notice. Barbernell, 257 S.W.3d at 251.

As we recently explained in our unanimous opinion in State v. Jarreau, our notice jurisprudence requires appellate courts to engage in a two-step analysis when analyzing whether a charging instrument provides adequate notice. State v. Jarreau, No. PD-0840-16, slip op. at 4 (Tex. Crim. App. Mar. 1, 2017); see also Barbernell, 257 S.W.3d at 255. First, the reviewing court must identify the elements of the offense. Jarreau, slip op. at 4. Next, it must consider whether the statutory language is sufficiently descriptive of the charged offense. Id.; Mays, 967 S.W.2d at 407.

Here, Zuniga appeared to make both types of challenges to the sufficiency of the indictment in this case. We will address each challenge turn.

Is the Specific Identity of the Tampered-With Evidence an Element of the Offense?

Section 37.09(a)(1) of the Penal Code defines the offense of tampering with physical evidence with the following elements: (1) a person alters, destroys, or conceals; (2) any record, document, or thing; (3) with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; (4) knowing that an investigation or official proceeding is pending or in progress. TEX. PEN. CODE ANN. § 37.09 (a)(1) (West 2010); see also Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008). We have recognized that the statute contains at least two different culpable mental states: an actor must know his action would impair the item as evidence and he must act with the intent to impair its availability as evidence. Stewart v. State, 240 S.W.3d 872, 873-74 (Tex. Crim. App. 2007). The statute specifies that the putative evidence must be a record, document or thing, though it does not require that “thing” be, in and of itself, of a criminal nature. TEX. PENAL CODE ANN. § 37.09(a)(1) (West 2010); Williams, 270 S.W.3d at 144.

The court of appeals appears to acknowledge that the indictment must at least allege whether the “evidence” altered, concealed, or destroyed was “a record, document, or a thing.” Zuniga, 2015 WL 4381064 at *2. However, the court of appeals determined that the specific identity of the evidence at issue was not an element of the offense. Id. The court reasoned that the identity of the tampered-with evidence will be relevant at trial to show Zuniga's intent, but it is not a separate element of the offense. Id. at *3.

The court of appeals correctly held that the specific identity of the evidence is, as one might expect, an evidentiary issue. The plain text of the statute uses the word “thing” to differentiate the tampered-with evidence from either a “record” or a “document.” TEX. PENAL CODE ANN. § 37.09 (a)(1) (West 2010). The only time the statute specifies a particular type of “thing” is in subsection (c) where the offense becomes a second degree felony if “the thing altered, destroyed, or concealed is a human corpse.” TEX. PENAL CODE ANN. § 37.09 (c) (West 2010). The term “thing” remains otherwise undefined.

This stands in contrast to an offense in which the specific identity of a putative object is a necessary element such as possession of a controlled substance. In the Controlled Substances Act, the relevant statutory provisions explicitly identify which substances are illegal to possess. Paragraph (a) of §§ 481.112 through 481.118 make it clear that it is an offense to possess, manufacture or deliver a controlled substance listed in the particular penalty group. TEX. HEALTH & SAFETY CODE ANN. §§ 481.112–.118. Except in the context of tampering with a human corpse, the tampering statute does not otherwise define what constitutes a “thing” that can be altered, concealed, or destroyed suggesting that the specific identity of the tampered-with evidence is not an essential element.

Additionally, as the court of appeals properly noted, intermediate courts have upheld convictions for tampering with evidence without requiring the State to definitively prove exactly what evidence was altered, concealed, or destroyed. See e.g. Barrow v. State, 241 S.W.3d 919, 923-24 (Tex. App.–Eastland 2007, pet. ref'd.) (affirming conviction for tampering with evidence where the defendant swallowed a “rock-like” substance believed to be crack cocaine), Vaughn v. State, 33 S.W.3d 901, 903 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (upholding conviction for tampering with evidence where State did not prove specific identity of evidence destroyed). The only “element” the State must allege in the indictment is whether the evidence at issue was “a record, a document, or a thing.” By alleging that Zuniga tampered with “an unknown substance,” the State seeks to prosecute Zuniga for tampering with a “thing,” rather than a “record” or a “document.” Thus, we agree with the State and the court of appeals that 1) the State alleged every element of the offense of tampering with evidence when it amended its indictment and 2) the specific identity of the tampered-with evidence was not an element of the offense.

Did the Indictment Provide Adequate Notice?

Zuniga primarily argued to the trial court that more particular pleading is necessary to allow her to properly prepare a defense. The trial court agreed, quashing the indictment and stating that the indictment failed to provide sufficient notice. As mentioned above, a charging instrument drafted in the language of the penal statute is generally sufficient to provide an accused with adequate notice because the terms of the statute inform him or her of the nature of the charge. Mays, 967 S.W.2d at 406; Moff, 154 S.W.3d at 602 (citing Haecker v. State, 571 S.W.2d 920, 921 (Tex. Crim. App. 1978)). But the court of appeals was also required to take the second step and analyze whether the terms of the statute are sufficiently descriptive of the charged offense. Barbernell, 257 S.W.3d at 255; see also Mays, 967 S.W.2d at 407 (noting that when a statute uses an undefined term of indeterminate or variable meaning, the State must include more specific pleadings in the indictment in order to notify the defendant of the nature of the charges against him). The State acknowledges that the indictment must provide the defendant with sufficient notice to prepare a defense “even if identity of the thing tampered with is not an element of the offense.” State's Br. 9.

Though purporting to address the notice issue, the court of appeals simply held that the specific identity of the tampered-with evidence did not need to be pleaded because it was not an element of the offense. Zuniga, 2015 WL 4381064 at *3. The court of appeals did not conduct an analysis of whether the terms of the statute were sufficiently descriptive of the charged offense. Or, if it did, it did not explain how it came to that conclusion beyond simply stating that the specific identity of the tampered with evidence was not an element of the offense.

Because Zuniga prevailed in the trial court, the court of appeals was required to uphold the trial court's ruling if it was correct under any theory of law applicable to the case. Rhinehart, 333 S.W.3d at 161. Yet, the court of appeals did not address whether the language contained in the indictment was of such indeterminate and variable meaning that it failed to provide Appellee with adequate notice of what criminal acts she was accused of committing. Consequently, we remand the case to afford the court of appeals the opportunity to consider Zuniga's challenge that the indictment failed to provide her with adequate notice to prepare her defense. McClintock v. State, 444 S.W.3d 15, 16 (Tex. Crim. App. 2014).

Conclusion

The specific identity of the tampered-with evidence is not an element of the offense. However, the court of appeals did not address whether the trial court could have properly determined that more specificity was required in the indictment in order to provide the defendant with adequate notice of the charged conduct. We remand this case for the court of appeals to fully address that issue.

I agree with the Court that the court of appeals concluded correctly that “the specific identity of the evidence” in a tampering with physical evidence case is an “evidentiary issue” and that Appellee's exception to the substance of the indictment lacks merit because “the State alleged every element of the offense of tampering with evidence.” Majority Opinion at 12-14. I also agree with the Court's decision to remand this case to the court of appeals to have that court address more fully the argument that the indictment failed to provide adequate notice to allow the preparation of a defense. Id. at 16. I therefore join the Court's opinion. I write separately only to highlight what I perceive to be a critical distinction between what the court of appeals addressed in its initial review of this case and what the trial court actually described as the basis for its ruling.1

Appellee was indicted on April 25, 2014, for the offenses of assault on a public servant and tampering with physical evidence. With regard to the allegation that Appellee tampered with physical evidence, the indictment originally alleged that she

did then and there, while knowing that an investigation was in progress, to wit: A DRUG INVESTIGATION, intentionally and knowingly ALTER, OR DESTROY, OR CONCEAL [ ] with intent to impair its verity or availability as evidence in any subsequent investigation or official proceeding related to the offense.

Appellee filed a motion to quash the indictment in which she alleged, among other things, that “the [i]ndictment [did] not adequately inform [her] of the act(s) the state [would] rely upon to constitute the crime of Tampering with Physical Evidence.” On May 8, 2014, the trial court held a hearing on her motion at which the State announced that it would amend the indictment to replace the empty brackets in the tampering allegation with the phrase “an unknown substance.”

On May 12, 2014, Appellee filed an amended motion to quash the indictment, arguing again that the original indictment “failed to allege ․ how it is that the defendant altered, destroyed or concealed” evidence, and also arguing that “Defendant has absolutely no idea what the State is alleging she did ․” Appellee questioned, “how does ‘unknown substance’ give any insight ․ as to what ‘thing’ the State speaks of and/or how such thing was or could have been and/or was ‘evidence’ at all.” She concluded, “the ‘amended indictment’ proffered by the State still fails, as it ․ does not adequately inform [Appellee] of the act(s) the State [would] rely upon to [demonstrate] the crime of Tampering with Physical Evidence.”

The trial court convened a hearing to address the amended motion on May 29, 2014. At that hearing, the bulk of the discussion between the parties addressed the propriety of the State's reliance on the phrase “an unknown substance” to describe the evidence alleged to have been tampered with. But at the conclusion of the hearing, the trial judge announced, consistent with a clear allegation in the motion that was being heard, the following: “I believe the indictment fails at this time to inform the defendant of the acts that [the State] will rely upon to constitute the crime of tampering, and at this time I am going to quash the indictment.” (emphasis added).

The State appealed, complaining that the trial court erred by granting Appellee's motion to quash. The State argued that the court of appeals should hold that “the evidentiary ‘thing’ tampered with need not be specifically identified in the indictment,” especially when it is unknown. The court of appeals agreed with the State and reversed the trial court's order. But neither the State nor the opinion of the court of appeals addressed the conclusion of law announced by the trial court as the basis for its ruling. Instead, they both focused narrowly on certain major arguments of the parties at the hearing.

The court of appeals correctly observed that the sufficiency of a charging instrument is a question of law that is reviewed de novo. See Smith v. State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). But the court of appeals appears to have focused not on the sufficiency of the charging instrument so much as it focused on the argument presented by the State and responded to by Appellee orally at the hearing on the amended motion to quash. In the end the court of appeals concluded, as do I, that the indictment sufficiently described the thing alleged to have been tampered with. But it failed, in my view, to address the equally important alternative question of whether the indictment sufficiently alleged the act or acts that the State would rely upon to demonstrate tampering.

We stated long ago, in Haecker v. State, 571 S.W.2d 920, 921 (Tex. Crim. App. 1978), that “[i]t is not sufficient to say that the accused knew with what offense he was charged; rather, we must inquire as to whether the face of the instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense.” In this case, Appellee complained in her motion to quash that she had “absolutely no idea what the State is alleging she did.” Indeed, then, the trial court declared that the indictment should be quashed because it failed “to inform the defendant of the acts that [the State would] rely upon to [demonstrate] the crime of tampering.” But, it is as if the parties and the court of appeals in this case all failed to notice the precise thing that appears to have driven the trial court to declare that the indictment should be quashed; they seem not to have noticed the difference between an act and the thing that is acted upon.

I would therefore agree fully with the decision of the majority to remand to address the adequacy of the notice provided in the indictment in this case. On page 4 of the Appellee's brief on direct appeal, Appellee argued that “the indictment is insufficient ․ to wit that it ․ does not adequately inform Appellee of the act(s) the State will rely upon to constitute the crime of Tampering with Physical Evidence.” The court of appeals has not addressed that question. But it should. In my view, that is an issue that has not yet been addressed but that is necessary to a final disposition of this appeal. TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

Moreover, “[a]n appellate court must uphold a trial court ruling that is reasonably supported by the record and is correct under any theory of law applicable to the case.” State v. White, 306 S.W.3d 753, 758 n.10 (Tex. Crim. App. 2010). It is entirely possible that the trial court ruled in this case that the indictment failed to sufficiently allege the act (as opposed to what was acted upon). If so, that would be an alternative basis for granting the motion to quash that would support the trial court's ruling and that ought to be addressed on appeal. With these additional thoughts, I join the Court's opinion.

The Court says that appellee raised both a “defect of form” claim and a “defect of substance” claim. While that may be true in some sense, it does not appear to me that she separated out the claims in the manner that this Court does. For this reason, I do not fault the court of appeals for failing to separate out the claims in its opinion. I believe that the court of appeals adequately addressed appellee's claim, so I would affirm that court's judgment.

While it is true that some parts of the court of appeals's opinion discuss whether the specific identity of the destroyed evidence was an element of the offense, other parts seem to focus on notice. Also, appellee does not seem to have argued the two-step analysis that this Court employs. The court of appeals was aware that appellee's claim included a notice claim. The court framed the issue as follows:

We are asked to determine whether an “unknown substance” can be a “thing” under section 37.09 of the penal code such that an indictment alleging the same complies with the constitutional notice requirements and the Texas Code of Criminal Procedure.1

Because the court acknowledged both aspects of appellee's claim, I believe its holding was intended to, and did, also encompass both claims. Finally, appellee does not complain in her petition to this Court that the court of appeals erred in failing to employ the two-step analysis. She argues instead that the indictment failed to provide information adequate to allow her to prepare a defense. I believe that the court of appeals's opinion sufficiently addressed the claim before it.

I respectfully dissent.

FOOTNOTES

1.   The State stipulated at a hearing on Appellee's motion to quash the indictment that the officer would testify at trial that he saw Appellee swallow a white substance in a baggy. The State also claimed that it suspected Appellee had swallowed either cocaine or a pill.

2.   Based upon Zuniga's conduct after the alleged tampering, the State also charged Zuniga with assault on a public servant in a separate count. The only count at issue in this appeal, however, is the count alleging that Zuniga tampered with physical evidence.

1.   While we have sometimes required that an indictment allege information beyond the bare language of the penal provision, we have done so only “when the statutory language is not completely descriptive of the offense.” George E. Dix & John M. Schmolesky, 42 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 25:142, at 232 (3d ed. 2011). It might plausibly be argued that the statutorily proscribed act itself—“alters, destroys, or conceals”—is not “completely descriptive” of the conduct necessary to commit the offense. TEX. PENAL CODE § 37.09(a)(1). As I shall explain, I believe this issue was properly before the court of appeals, and it should not have reversed the trial court's ruling on the motion to quash without first addressing it.

1.   State v. Zuniga, No. 13-14-00316-CR, 2015 Tex. App. LEXIS 7294, *5 (Tex. App.—Corpus Christi-Edinburg July 16, 2015) (not designated for publication).

Copied to clipboard