Page 109 - TPA - A Peace Officer's Guide to Texas Law 2015

DESTRUCTION OF EVIDENCE SWALLOWING

While being frisked during a detention investigating a shoplifting complaint, Defendant quickly
swallowed a plastic baggie he held in his hand. During the subsequent struggle with officers, Defendant became
unconscious and soon revived. Defendant told a medic that the baggie he swallowed contained pills which were
not prescribed to him. The material swallowed by Defendant was not retrieved.

The State charged defendant with violating Section 37.09 of the Penal Code by knowing that an
investigation was in progress, intentionally or knowingly destroy[ing] a plastic baggie with intent to impair its
availability as evidence in the investigation. He was convicted and sentenced him to six years of confinement.
The court of appeals concluded that, because the evidence showed only the baggies location and nothing about
the condition of the baggie or pills, the acts of Appellant constituted concealment rather than destruction. Based
on this determination, the court of appeals reversed the trial court, holding that no rational trier of fact could have
found that Appellant destroyed the baggie within the meaning of the law.

On appeal, the State argued that concluding that the baggie was destroyed in Appellants digestive tract
was a reasonable inference for the trial court to make. This means that if a fact finder could reasonably infer
from the evidence that the baggie and pills were destroyed by their passage into Appellants body, then the
evidence would be sufficient to uphold Appellants conviction. The fact finder is, however, prohibited from
drawing conclusions based on speculation or mere theorizing about the possible meaning of the facts.

The State did not present any evidence on the condition of the baggie or its contents after Appellant
swallowed them, nor any evidence that demonstrated that the items had been ruined or rendered useless. In fact,
there was not even an attempt made by officers or doctors to retrieve the baggie or to determine if its recovery
was possible. There was, therefore, no evidence at the trial from which a fact finder could reasonably infer that
the evidence had been destroyed.

The State presented no evidence that the baggie and its contents were destroyed and no evidence on which
a fact finder could base a reasonable inference that they had been destroyed. Consequently, we hold that the court
of appeals was correct in determining that no rational trier of fact could have found that Appellant destroyed the
evidence.

Therefore, the proper disposition here is to remand the case to the court of appeals for its consideration
of those questions. (Whether the conviction may be reformed to reflect a charge of concealing evidence rather
than destruction of evidence.)

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Rabb v. State, Ct. Crim. App., No. PD-1643-12, June 25 , 2014.

CHILD NEGLECT, CHILD ABUSE. SUFFICIENCY OF EVIDENCE

Appellant, Nilda Rodriguez, was charged with felony murder for the death of her two-month-old son. She
was convicted and sentenced to 30 years in prison. The Court of Appeals ruled that the evidence was sufficient
to support the conviction and the Court of Criminal Appeals reversed.

On October 8, 2008, Appellant gave birth to twins, one male and one female. Seven weeks later, EMS
was called to Appellants home when she found the male twin unconscious and unresponsive. He was taken to
the hospital where he was pronounced dead. An autopsy indicated that the infant died from malnutrition and
dehydration. He had gained only ten ounces since birth and was described by a medical expert as having
wrinkled, tenting skin, no subcutaneous fat, and no fluid in his body that could be drawn for testing. The expert
also explained that this condition was not normal and would be one that progressed over time, possibly after the
childs being provided with small, but not adequate, amounts of food. Appellant was the only adult responsible

A Peace Officer’s Guide to Texas Law 102 2015 Edition