Page 28 - July August 2020 TPA Journal

explicitly said that it did not resolve the issue State require a different result, but we disagree. In
because the parties agreed that “[Carnley] altered Munsch, police found a bag containing 16.94
the Pontiac by moving it.” The State also cites grams of methamphetamine after a traffic stop
[several case cites omitted.] all of which deal when the driver told police on the way to the
with corpses. All three cases are distinguishable. county jail that Munsch threw a bag of
This case does not deal with a corpse, which is methamphetamine out of the passenger-side
quantitatively different than the prescription pill window while they were being pulled over. After
bottle at issue here, and this case does not deal returning to the scene, the police officer located
with altering the location and physical state of the the bag with his flashlight, although he had
pill bottle, only its location. With this background, difficulty doing so because it was dark outside. In
we conclude that the evidence is insufficient to Lujan, as a police officer approached Lujan on
prove that Stahmann altered the prescription pill foot to detain him for possible drug activity, he
bottle when he threw it over the fence because the noticed that Lujan “took his right hand from his
mere act of throwing the pill bottle did not change left side and moved it towards the center ‘as if he
the bottle itself. Having found the evidence of was throwing something.’” The officer found a
alteration insufficient, we next turn to whether the crack pipe on the ground. According to the State,
evidence of concealment was sufficient. this case and Munsch are similar because in both
cases law enforcement would not have found the
The State argues that “conceal” means to remove
evidence without the assistance of a third-party
from sight or notice, even if only temporarily, and witness. We think that Munsch is distinguishable.
that the statute refers to concealing evidence from The evidence in that case established that it was
law enforcement. According to the State’s
not until the driver was arrested and secured in the
argument, it does not matter that Ballard and police cruiser that she told the officer about the
Freeman never lost sight of the pill bottle, that
bag of drugs. In this case, however, Ballard and
they directed Koepp to the bottle, that Koepp Freeman told Koepp about the bottle as soon as he
could see it. “very clearly,” or that the bottle was arrived. Koepp had not even begun his on-scene
easily retrieved, because Stahmann concealed it
investigation. Second, it was difficult for the
from Koepp when he threw it over the fence officer in Munsch to find the bag even after the
before Koepp arrived to investigate.
driver told him about it since it was dark and
Even if we assume without deciding that the Munsch threw it out of the passenger side window
statute applies to only law enforcement, as the while the vehicle was still moving. But here,
State argues, we conclude that the pill bottle in
Ballard and Freeman showed Koepp exactly
this case was not concealed from law where the bottle was, and Koepp saw the bottle
enforcement. What the witnesses saw and told law
“very clearly” in the afternoon daylight. The State
enforcement informs whether the physical argues that Lujan shows that a defendant need not
evidence was concealed from law enforcement. successfully conceal something to be guilty of
The outcome of this case might be different had
tampering with evidence by concealment, but we
Ballard and Freeman not been there, had they lost agree with the court of appeals that “[a]ctual
sight of what Stahmann threw or where it landed,
concealment requires a showing that the allegedly
had they not spoken to Koepp and directed him to concealed item was hidden, removed from sight or
the pill bottle when he arrived, or had Koepp had notice, or kept from discovery or observation.”.
a difficult time locating it. But those are not the
We also agree with the court of appeals that intent
facts of this case. and concealment are two distinct elements of the
offense and that the Lujan Court erred if it
The State argues that Munsch v. State and Lujan v.

24 www.texaspoliceassociation.com • (512) 458-3140 Texas Police Journal