Page 35 - TPA Journal January February 2024
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On appeal, Appellant raised four points of whether the evidence is legally sufficient, we
error, including that the evidence is compare the evidence produced at trial to “the
legally insufficient. A split panel of the El essential elements of the offense as defined by
Paso Court of Appeals agreed and further held the hypothetically correct jury charge.” A
that Appellant’s conviction could not be hypothetically correct jury charge “accurately
reformed to reflect that he was convicted of sets out the law, is authorized by the
the lesser-included offense of attempted indictment, does not unnecessarily increase
tampering with physical evidence. The court the State’s burden of proof or unnecessarily
o f restrict the State’s theories of liability, and
appeals did not reach Appellant’s challenge to adequately describes the particular offense for
the sufficiency of other elements of the which the defendant was tried.” The “law as
offense or his other points of error. authorized by the indictment” includes the
statutory elements of the offense and those
elements as modified by the indictment.
The State then filed a petition for discretionary
review, which we granted, arguing that the
court of appeals erred because the evidence is Section 37.09(a) states, relevant to this
legally sufficient to show that Appellant offense, that,
altered or destroyed the marijuana and that,
even if the evidence is insufficient, the court of
appeals erred in holding that Appellant’s (a) A person commits an offense if, knowing
conviction could not be reformed. that an investigation or official proceeding is
pending or in progress, he:
A criminal conviction cannot stand unless it is
supported by legally sufficient evidence. (1) alters, destroys, or conceals any record,
Evidence supporting a conviction is legally document, or thing with intent to impair its
sufficient if a rational trier of fact could have verity, legibility, or availability as evidence in
found each element of the offense beyond a the investigation or official proceeding; . . .
reasonable doubt. The trier of fact is the
exclusive judge of the credibility and weight
of the evidence and is allowed to draw any The indictment alleged that Appellant “did
reasonable inference from the evidence so then and there knowing that an
long as it is supported by the record. When investigation or official proceeding is pending
reviewing the evidence, we consider the or in progress alter, destroy, or conceal a
combined and cumulative force of all the thing, to wit: drugs, with intent to impair its
admitted evidence in the light most favorable verity, legibility, or availability as evidence
to the verdict. Direct evidence and in the investigation or official proceeding.”
circumstantial evidence are equally probative, Therefore, the hypothetically correct jury
and circumstantial evidence alone may be charge required the State to prove that (1)
sufficient to uphold a conviction. The Appellant, (2) knew that an investigation or
evidence need not negate every conceivable official proceeding was pending or in progress
alternative to a defendant’s guilt to be and that he (3) altered, destroyed, or
sufficient, and a conviction will be upheld if concealed, (4) drugs, (5) with intent to impair
the evidence is sufficient under any theory their verity, legibility, or availability as
authorized in the charge. To determine evidence in the investigation or official
Jan/Feb 2024 www.texaspoliceassociation.com • (512) 458-3140 31
