Page 43 - TPA Journal July August 2017
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“the requirements of 21.02 of the Texas Code Because it was not an element of the offense,
of Criminal Procedure had not been met.” the court of appeals held that the specific iden-
The trial court further held that the indict- tity of the tampered-with evidence did not need
ment failed to inform the defendant of the to be pleaded in the indictment.
acts that the State would rely upon to consti-
tute the crime of tampering. We granted discretionary review to determine
whether the addition of the term “unknown
The State appealed the trial court’s ruling. The substance” is sufficient to apprise a defendant
State argued that it was not required to allege of what “thing” the State intended to prove was
the specific identity of the tampered-with evi- altered, concealed, or destroyed. We agree with
dence in the indictment because it would not the court of appeals’ determination that the spe-
be required to prove that fact in order to cific identity of the tampered-with evidence is
secure a conviction. According to the State, not an element of the offense. But we remand
the “thing” the case to allow the court of appeals to address
whether the statutory language is completely
tampered with was not an element of the descriptive of the proscribed conduct such that
offense that needed to be pleaded; it was it provided adequate notice.
merely an evidentiary matter that the State
was not required to allege in the indictment. Section 37.09(a)(1) of the Penal Code defines
In other words, the State argued that the spe- the offense of tampering with physical evidence
cific identity of the tampered-with evidence with the following elements: (1) a person alters,
was not an element of the offense. destroys, or conceals; (2) any record, docu-
ment, or thing; (3) with intent to impair its veri-
The court of appeals framed the issue in the ty, legibility, or availability as evidence in the
case as a matter of determining whether an investigation or official proceeding; (4) know-
“unknown substance” can be a “thing” under ing that an investigation or official proceeding
the tampering statute. is pending or in progress.
The court of appeals analyzed the elements We have recognized that the statute contains at
of the offense set out in the tampering statute least two different culpable mental states: an
and determined that the identity of the phys- actor must know his action would impair the
ical evidence at issue was not an element of item as evidence and he must act with the
the offense. According to the court of intent to impair its availability as evidence. The
appeals, the “identity of the putative evi- statute specifies that the putative evidence must
dence destroyed will be relevant at trial . . . be a record, document or thing, though it does
not because it is an element of the offense, not require that “thing” be, in and of itself, of a
but because it is evidence of intent.” criminal nature.
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