                                 In The
                            Court of Appeals
                   Seventh District of Texas at Amarillo
                           ________________________

                                No. 07-11-0069-CR
                           ________________________

                       GREGORY THORNTON, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE



                        On Appeal from the 140th District Court
                               Lubbock County, Texas
                            Trial Court No. 2008-419,888
                         Honorable Jim Bob Darnell, Presiding


                                   April 29, 2013

                            OPINION ON REMAND
                 Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      On August 7, 2012, this Court reversed Gregory Thornton’s conviction for

tampering with evidence and rendered a judgment of acquittal. See Thornton v. State,

377 S.W.3d 814 (Tex.App.—Amarillo 2012), vacated, No. PD-1517-12, 2013 Tex. Crim.

App. Unpub. LEXIS 48 (Tex.Crim.App. Jan. 9, 2013). Thereafter, the State filed a

petition for discretionary review contending, in part, that this Court should have
considered whether the evidence was sufficient to support a conviction for the lesser-

included offense of attempted tampering with evidence, and whether the judgment

should be reformed accordingly. Finding that this Court had issued its opinion without

the benefit of the recent opinion in Bowen v. State, 374 S.W.3d 427 (Tex.Crim.App.

2012), the Court of Criminal Appeals ordered that the judgment of this Court be vacated

and remanded the case to consider the effect, if any, on our original reasoning and

analysis. Remaining convinced that the evidence is insufficient to sustain Appellant’s

conviction for tampering with evidence and that Bowen has no application to the facts of

this case, we reverse the judgment of the trial court and render a judgment of acquittal.


                                   PROCEDURAL BACKGROUND


       Following a plea of not guilty, Appellant, Gregory Thornton, was convicted by a

jury of the third degree felony offense of tampering with evidence. 1 He pleaded not true

to two enhancement paragraphs and was sentenced to forty-five years confinement. By

two issues, Appellant questions whether (1) the evidence is sufficient to support a

conviction for tampering with evidence when the "evidentiary value" of an item of drug

paraphernalia, to-wit: a glass "crack pipe" was not destroyed or altered and the pipe

was never concealed from the officer that instigated the encounter; and whether (2) he

was entitled to a jury instruction on attempt after the arresting officer testified that he

"tried" to tamper with the evidence.




1
TEX. PENAL CODE ANN. § 37.09(c), (d)(1) (W EST SUPP. 2012).


                                                  2
                                       FACTUAL BACKGROUND


        On the morning of April 11, 2008, while on burglary patrol in an unmarked car

and dressed in plain clothes, Officers Jordan Roberts and Nathan Meil noticed

Appellant and a female walking in the street where an adjacent sidewalk was provided,

a violation of section 552.006 of the Texas Transportation Code. 2 The officers decided

to stop the individuals and issue a citation for the violation. They pulled up to them,

exited their vehicle, displayed their guns and badges and ordered them to stop. 3

According to Roberts, he observed Appellant reach inside a pocket and drop an object

before he walked towards him and Meil.                   After securing the individuals, Roberts

escorted Meil to the location of the dropped object where he retrieved a broken glass

crack pipe and a brillo pad. A female officer was called to search the female suspect.

An intact crack pipe was found in her pocket.


        Appellant and his female companion were both charged with possession of drug

paraphernalia, a Class C misdemeanor. 4 In addition, by the indictment in this cause,

Appellant was also charged with the third degree felony offense of tampering with

evidence. Following a plea of not guilty, a jury found Appellant guilty and the trial court

assessed his sentence at forty-five years confinement. 5



2
 Section 552.006(a) provides that a pedestrian may not walk along and on a roadway if an adjacent
sidewalk is provided and is accessible to the pedestrian. TEX. TRANSP. CODE ANN. § 552.006(a) (W EST
2011).
3
 Roberts testified that he and Meil were within twenty feet of Appellant when they identified themselves as
police officers.
4
TEX. HEALTH & SAFETY CODE ANN. § 481.125(a) and (c) (W EST 2010).
5
 The range of punishment applicable to this offense was enhanced by four prior felony offenses alleged in
the indictment. See TEX. PENAL CODE ANN. § 12.42(d) (W EST SUPP. 2012).

                                                    3
      By his first issue, Appellant maintains the evidence is insufficient to support his

conviction for tampering with evidence, as alleged in the indictment. We agree.


                           SUFFICIENCY STANDARD OF REVIEW


      The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Brooks v. State, 323 S.W.3d 893,

912 (Tex.Crim.App. 2010). Under that standard, in assessing the sufficiency of the

evidence to support a criminal conviction, this Court considers all the evidence in the

light most favorable to the verdict and determines whether, based on that evidence and

reasonable inferences to be drawn therefrom, a rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S.

at 319; Brooks, 323 S.W.3d at 912. We measure the legal sufficiency of the evidence

by the elements of the offense as defined by a hypothetically correct jury charge. Malik

v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). In our review, we must evaluate

all of the evidence in the record, both direct and circumstantial, whether admissible or

inadmissible.   Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert.

denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).


                                        ANALYSIS


      A person commits the offense of tampering with evidence if knowing that an

offense has been committed, he alters, destroys, or conceals any record, document or

thing with intent to impair its verity, legibility or availability as evidence in any

                                            4
subsequent investigation of or official proceeding related to the offense.                    See TEX.

PENAL CODE ANN. § 37.09(d)(1) (W EST SUPP. 2012).                     In this case, the indictment

specifically alleged that Appellant "intentionally and knowingly conceal[ed] physical

evidence, to-wit: glass pipe with intent to impair the availability of glass pipe as evidence

in a subsequent investigation related to the said offense . . . ." Under this indictment,

the critical element is the act of concealment because he was not charged with altering

or destroying the pipe.


        While the term "conceal" has not been defined by section 37.09 or elsewhere in

the Penal Code, courts have construed it to mean to hide, to remove from sight or

notice; to keep from discovery or observation. See Rotenberry v. State, 245 S.W.3d

583, 588-89 (Tex.App.--Fort Worth 2007, pet. ref'd); Hollingsworth v. State, 15 S.W.3d

586, 595 (Tex.App.--Austin 2000, no pet.). In fact, this Court has held that "conceal"

means "to prevent disclosure or recognition of" or "to place out of sight." See Lujan v.

State, No. 07-09-0036-CR, 2009 Tex. App. LEXIS 7121, at *6 (Tex.App.--Amarillo Sept.

9, 2009, no pet.) (not designated for publication). In the context of this offense, the actio

malum prohibitum of concealment is the affirmative act of doing something with the

intent of making an item of evidence unavailable in a subsequent investigation or

prosecution. 6




6
 An actio malum prohibitum is "[a] wrong prohibited; a thing which is wrong because prohibited; an act
which is not inherently immoral, but becomes so because its commission is expressly forbidden by
positive law; an act involving an illegality resulting from positive law." Tovar v. State, 978 S.W.2d 584,
587 (Tex.Crim.App. 1998) (quoting BLACK'S LAW DICTIONARY, ABRIDGED, 494 (5th ed. 1983)).


                                                    5
        Relying on Hollingsworth, 15 S.W.3d at 594-95, 7 Appellant maintains that by

reaching in his pocket and removing the glass pipe, he did not affirmatively act to

conceal evidence; rather, he merely dispossessed himself of the evidence, thereby

actually revealing it to Officer Roberts. In response, the State urges that Appellant's

"palming" of the pipe to remove it from his pocket constituted concealment.                         We

disagree with the State.


        In 2006, the Dallas Court of Appeals addressed the issue of concealment in

Blanton v. State, Nos. 05-05-01060-CR and 05-05-01061-CR, 2006 Tex. App. LEXIS

6367 (Tex.App.--Dallas July 21, 2006, pet. ref'd) (not designated for publication). There,

the defendant was stopped for a traffic violation and before stopping, he dropped two

plastic baggies from his car window. The baggies were later retrieved and although

some of the contents had spilled onto the street, a measurable amount of crack cocaine

remained in them. He was convicted of possession of cocaine and tampering with

evidence. Regarding the tampering conviction, he argued on appeal that the State

failed to prove he "concealed" the cocaine because he had in fact exposed it to the

officer's view. 8 The Dallas Court of Appeals agreed that Blanton had not concealed the

cocaine but nevertheless affirmed his conviction for tampering with evidence based on

7
 In Hollingsworth, an officer was dispatched to a knife fight. He observed the defendant, whom he
believed was a suspect, walking away from his patrol car at a fast pace. As the defendant ducked behind
dumpster, the officer observed him make a motion with his tongue in his mouth. A backup officer arrived
and observed the defendant spit out what appeared to be crack cocaine. The defendant was found guilty
of possession of cocaine and tampering with evidence. He challenged the tampering conviction by
arguing he had not concealed any evidence. The Court found the evidence insufficient to support the
conviction for tampering with evidence because, by spitting out the cocaine, which the backup officer
testified he observed, the defendant exposed it to the officer's view rather than affirmatively acting to
conceal the evidence. 15 S.W.3d at 595.
8
 Blanton also argued the State failed to prove he destroyed or altered the cocaine. However, those
arguments are not relevant here because, unlike the charges in Blanton, Appellant was not charged with
destroying or altering the pipe in question.


                                                   6
having "altered" the cocaine because the baggies had ripped and their contents had

spilled onto the roadway. Id. at *8-9.


       Here, Officer Roberts repeatedly confirmed during cross-examination that the

object Appellant removed from his pocket, i.e., the glass crack pipe, was never

concealed from him because it never left his sight. 9 Appellant never affirmatively acted

to make the crack pipe unavailable in a subsequent investigation or prosecution. He did

not throw it, bury it, cover it, hide it, place it out of sight, or otherwise affirmatively

attempt to conceal it. He merely dispossessed himself of it, leaving it in plain-view. As

in Blanton where the act of dropping baggies out of a car window did not result in

concealment, Appellant did not conceal the glass crack pipe by dropping it and thus

ultimately revealing it to Officer Roberts.


       The State urges that Officer Roberts's awareness of the glass pipe should not be

imputed to Officer Meil's unawareness.               Appellant, again relying on Hollingsworth,

argues that it implicitly held that an officer's awareness of evidence is imputed to other

officers.   Although neither party cites to any authority involving tampering cases in

support of their respective arguments, we follow the logic of Hollingsworth in which at

least one of the officers on the scene, as is the case here, was aware of the presence of


9
Officer Roberts testified as follows during cross-examination:

       Q. From the moment he took the pipe out of his hand, to the moment it hit the ground, to the
       moment you picked it up, did you ever lose sight of it?
       A. No.
                                                  ***
       Q. And correct me if I'm wrong, the pipe was never out of your vision; is that right?
       A. Yes, sir.
                                                  ***
       Q. Essentially, Officer Roberts, what I'm hearing from you is that the pipe was never out of your
       sight; is that correct?
       A. Yes, sir.

                                                    7
the item alleged to have been concealed at all times. Cf. Holloway v. State, 780 S.W.2d

787, 796 (Tex.Crim.App. 1989) (regarding the Sixth Amendment, knowledge is imputed

from one state actor to another).


       Based on the plain and ordinary meaning of "conceal" and on the evidence and

reasonable inferences to be drawn therefrom, we conclude that no rational trier of fact

could have found that Appellant "concealed" the pipe as alleged in the indictment.

Issue one is sustained.


                                LESSER-INCLUDED OFFENSE


       Originally, we found that our disposition of Appellant's first issue pretermitted

consideration of his second issue. TEX. R. APP. P. 47.1. In its petition for discretionary

review, the State contends that we should have considered that issue in order to

determine whether the evidence was sufficient to support a conviction for the lesser-

included offense of attempted tampering with evidence and whether the judgment of the

trial court should be reformed in lieu of a judgment of acquittal.


       Initially, we would note that the State waived any error with respect to the trial

court’s failure to submit a lesser-included offense by failing to either timely request such

a submission or object to the omission of the issue in the jury charge. See Tolbert v.

State, 306 S.W.3d 776, 780 (Tex.Crim.App. 2010) (holding that a defendant waives

entitlement to a lesser-included offense “unless the defendant, ‘timely requests the

issue or objects to the omission of the issue in the jury charge,’” quoting Druery v. State,

225 S.W.2d 491, 512-13 (Tex.Crim.App. 2007)). Basic principles of preservation of

error apply equally to the State and the defendant. See Martinez v. State, 91 S.W.3d

                                              8
331, 335-336 (Tex.Crim.App. 2002). In this case, not only did the State not request a

lesser-included offense charge, it stood idly by as the trial court denied Appellant’s

request for one.


       Notwithstanding the issue of waiver, in Bowen v. State, the Texas Court of

Criminal Appeals reversed the rule announced in Collier v. State, 999 S.W.2d 799

(Tex.Crim.App. 1999), and held that, when a lesser-included offense charge is either

requested by the parties or included in the jury charge, and the evidence is legally

insufficient as to the original offense charged, rather than a reversal and rendering of

judgment of acquittal as to that offense, an appellate court should reform the conviction

to the lesser-included offense in those situations where the State has failed to prove an

“aggravating element” of the charged offense, but has met its burden of proof as to the

“essential elements” of the lesser-included offense. Bowen v. State, 374 S.W.3d 427,

432 (Tex.Crim.App. 2012). Although any error arising from the trial court’s failure to

submit a lesser-included offense charge was waived by the State, because Appellant

requested such a charge, the State contends that this Court should reform Appellant’s

conviction to the lesser-included offense of attempted tampering with evidence.


       In Bowen, the defendant was charged with the first degree felony offense of

misapplication of fiduciary property of $200,000 or more. 10 The State met its burden of

proof with respect to the essential elements of the offense of misapplication of fiduciary

property; however, it failed to prove the value of the misapplied property as being more

than $200,000. Because the proof established that the value of the misapplied property


10
 TEX. PENAL CODE ANN. § 32.45(b), (c)(7) (W EST 2011).


                                                  9
was, at most, $103,344, the Court held that the trial court should have rendered a

judgment to reflect conviction of the lesser-included second degree felony offense of

misapplication of fiduciary property of $100,000 or more, but less than $200,000. 11


       Bowen is clearly distinguishable from the facts of this case and, as such, is not

relevant to our decision to acquit rather than reform the judgment to reflect a conviction

as to the lesser-included offense of attempted tampering with evidence. In Bowen, the

actio malum prohibitum of the offense of misapplication of fiduciary property was

misapplication.      Because the value of the property misapplied was merely an

“aggravating element” used to determine the degree of the offense, as opposed to

defining the offense itself, the Court of Criminal Appeals found that the “essential

elements” of the offense had been proven beyond a reasonable doubt and that the trial

court should have reformed the judgment to reflect a conviction as to the lesser-

included offense. That simply is not the case in this proceeding.


       Here, Appellant was charged by indictment with intentionally and knowingly

concealing physical evidence, a glass crack pipe, with the intent of impairing the

availability of that evidence in a subsequent investigation or official proceeding related

to the Class C misdemeanor offense of possession of drug paraphernalia. 12 Under that

indictment, in order to obtain a conviction, the State was required to prove beyond a

reasonable doubt that (1) Appellant, (2) knowing that the offense of possession of drug

paraphernalia had been committed, (3) intentionally or knowingly, (4) concealed, (5)

physical evidence, (6) with the intent to impair the availability of that evidence as

11
 TEX. PENAL CODE ANN. § 32.45(b), (c)(6) (W EST 2011).
12
 TEX. HEALTH & SAFETY CODE ANN. § 481.125(a), (d) (WEST 2010).

                                                  10
evidence in a subsequent investigation or official proceeding related to that offense.

These are the “essential elements” of the offense. Concealment is not an “aggravating

element” of the offense of tampering with evidence, it is the very sine quo non of that

offense. As such, Bowen has no application to the facts of this case and we are not

bound to consider whether to reform Appellant’s judgment to reflect a conviction as to

the lesser-included offense of attempted tampering with evidence.


      Furthermore, even if Bowen were applicable to this case, the evidence presented

would not be legally sufficient to support a conviction of attempted tampering with

evidence. Section 15.01(a) of the Texas Penal Code provides that a person commits

an “attempted” offense if, with the specific intent to commit an offense, he does an act

amounting to more than mere preparation that tends but fails to effect the commission

of the offense intended. TEX. PENAL CODE ANN. § 15.01(a) (W EST 2011). The State’s

failure to prove the element of concealment cannot be boot-strapped into an attempted

offense merely by arguing that Appellant attempted, but did not complete, the element

of concealment without a showing that, with specific intent to conceal that evidence, he

committed an act amounting to more than mere preparation that tended to but failed to

effect the act of concealment.


      As stated above, the State now contends that Appellant's "palming" of the pipe to

remove it from his pocket constituted attempted concealment. Such an argument is

merely made up out of whole cloth, requiring total speculation as to whether or not

Appellant had the specific intent to “conceal” the evidence once he removed it from his

pocket, or whether he merely intended to dispossess himself of it. Without evidence of

a specific intent to conceal, Appellant’s merely reaching into his pocket and removing

                                          11
the pipe is no more attempted concealment than having a drink is attempted public

intoxication. Evidence of an act amounting to more than mere preparation is totally

lacking.     As such, we conclude that no rational trier of fact could have found that

Appellant attempted to conceal evidence of any kind.


                                       CONCLUSION


       Having found the evidence is insufficient to sustain Appellant's conviction for

tampering with evidence, we reverse the trial court's judgment and render a judgment of

acquittal.



                                                Patrick A. Pirtle
                                                    Justice


Publish.




                                           12
