                         NUMBER 13-14-00316-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                         Appellant,

                                           v.

MARY ZUNIGA,                                                                Appellee.


                   On appeal from the 347th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

             Before Justices Rodriguez, Garza, and Longoria
              Memorandum Opinion by Justice Rodriguez

      By one issue, appellant, the State of Texas, challenges the trial court’s order

quashing count one of the indictment against appellee Mary Zuniga. We reverse and

remand.

                                  I.     BACKGROUND

      Zuniga was pulled over by a police officer for allegedly running a stop sign in front
of her home. The officer placed Zuniga under arrest when he observed a bottle of

controlled medication in Zuniga’s vehicle for which she was not able to show a valid

prescription. 1 At the hearing on Zuniga’s motion to quash the indictment, the State

provided the following recitation of events:

       They handcuffed her and put her in the back of the car, this is all on video.
       As she’s sitting in the back of the police car with her hands handcuffed
       behind her back, you see her on the video moving her hands towards her
       side, reaching into her crotch area, pulling something out with her hands
       cupped because apparently she knows an officer is watching her. Moves
       her hands towards her mouth and moves her head down, like she
       swallowed something.

At the hearing, the State also stipulated that an officer would testify at trial that he saw

Zuniga swallow a white substance in a baggy. Zuniga was taken to the hospital where

medical professionals pumped Zuniga’s stomach and performed an x-ray. No illegal

substance or baggie was found. The State neither tested the results of Zuniga’s stomach

purge for an illegal substance nor requested any testing of her blood.

       Zuniga was indicted on two counts: tampering with physical evidence and assault

on a public servant. The first count (the only count at issue in this appeal) alleged:

       Mary Zuniga, defendant, on or about, December 29, 2013, in Nueces
       County, Texas, did then and there, while knowing that an investigation was
       in progress, to wit: A DRUG INVESTIGATION, intentionally and knowingly
       ALTER, OR DESTROY, OR CONCEAL, an unknown substance with intent
       to impair its verity or availability as evidence in any subsequent investigation
       or official proceeding related to the offense.

       The phrase “an unknown substance,” was originally omitted. Zuniga moved to

quash the indictment on the grounds that its allegations were insufficient. It was during

the hearing on Zuniga’s first motion to quash the indictment that the State made the


       1   Zuniga later provided a valid prescription—the medicine was for her child.
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handwritten notation—unknown substance—on the indictment.           In response, Zuniga

challenged the sufficiency of the modified indictment, complaining that “an unknown

substance” was not sufficient to charge Zuniga with tampering with physical evidence

pursuant to the code of criminal procedure. The trial court agreed and granted Zuniga’s

motion to quash count one of the indictment by written order. This appeal followed.

                     II.     IS AN “UNKNOWN SUBSTANCE” A “THING”

      By a single issue, the State contends that the “unknown substance” language in

the indictment was sufficient to charge Zuniga with the crime of tampering with physical

evidence pursuant to section 37.09 of the Texas Penal Code. See TEX. PENAL CODE

ANN. § 37.09 (West, Westlaw through Ch. 49, 2015 R.S.). Zuniga responds that the

indictment was facially defective because it did not include all elements of the offense

that the State must prove.

      A.     Applicable Law

      The sufficiency of a charging instrument presents a question of law that we review

de novo. Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010). The right to

notice of pending criminal charges is set forth in both the United States and Texas

constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see State v. Moff, 154

S.W.3d 599, 601 (Tex. Crim. App. 2004).            In order to satisfy the defendant’s

constitutional right to notice, an indictment must be specific enough to inform him or her

of the nature of the accusation such that the accused can prepare a defense. TEX. CODE

CRIM. PROC. ANN. art. 21.11 (West, Westlaw through Ch. 49, 2015 R.S.); Moff, 154 S.W.3d

at 601. The indictment should state everything that is necessary to be proven. TEX.


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CODE CRIM. PROC. ANN. art. 21.03.

          Generally, when an indictment tracks the language of a penal statute, it will satisfy

constitutional and statutory requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex.

Crim. App. 1998) (noting that the State need not allege facts that are merely evidentiary

in nature). In the context of a motion to quash, we look to whether the indictment facially

alleges the elements of the offense; we do not look at the evidence supporting the

indictment. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (opinion

on reh’g); State v. Clarke, 880 S.W.2d 854, 854–55 (Tex. App.—Corpus Christi 1994, pet.

ref’d).

          Section 37.09(a)(1) of the Texas Penal Code defines the offense of tampering with

physical evidence as: (1) knowing that an investigation or official proceeding is pending

or in progress; (2) a person alters, destroys, or conceals any record, document, or thing;

(3) with intent to impair its verity, legibility, or availability as evidence in the investigation

or official proceeding. TEX. PENAL CODE. ANN. § 37.09(a)(1); Rabb v. State, 434 S.W.3d

613, 616 (Tex. Crim. App. 2014) (citing Williams v. State, 270 S.W.3d 140, 142 (Tex.

Crim. App. 2008)). The statute specifies that the putative evidence must be a record,

document or thing, though it does not require that the “thing” be, in and of itself, of a

criminal nature. See TEX. PENAL CODE ANN. § 37.09(a)(1); Williams, 270 S.W.3d at 144.

          B.     Discussion

          We are asked to determine whether an “unknown substance” can be a “thing”

under section 37.09 of the penal code such that an indictment alleging the same complies

with the constitutional notice requirements and the Texas Code of Criminal Procedure.


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See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. arts. 21.03.,

21.11 (West, Westlaw through Ch. 49, 2015 R.S.); see also Rosenbaum, 910 S.W.2d at

948.

       Though the prosecutor stated at the hearing on the motion to quash that the

arresting officer would testify that he observed Zuniga swallow a baggie containing a

white substance, the indictment in this case did not specifically identify what the State

alleges Zuniga destroyed: it merely states that the item allegedly destroyed was an

“unknown substance.”      However, because Zuniga challenged the sufficiency of the

charging document itself, the trial court could not consider any evidence and was limited

to the face of the indictment itself in making its determination to quash. See Rosenbaum,

910 S.W.2d at 948.

       In the present case, the State’s indictment did not specifically identify the alleged

physical evidence destroyed; however the statute does not require a high degree of

specificity in identifying the destroyed evidence. See, e.g., Barrow v. State, 241 S.W.3d

919, 923–24 (Tex. App.—Eastland 2007, pet. ref’d) (affirming a conviction for tampering

when Barrow swallowed a “rock-like” substance believed to be crack cocaine); see also

Perry v. State, No. 06-08-00039-CR; 2009 WL 1138812, at *6 (Tex. App.—Texarkana

Apr. 29, 2009, pet. ref’d) (mem. op., not designated for publication) (holding that the

evidence was legally sufficient to support a tampering conviction even though the State

did not prove that the destroyed evidence was Seroquel, as alleged in the indictment,

because the State did put forth evidence that something of evidentiary value was

destroyed). Instead, a facially complete indictment in this case must allege every fact


                                             5
necessary to convict Zuniga of tampering with physical evidence pursuant to section

37.09. See TEX. CODE. CRIM. PROC. ANN. art. 21.03; Rosenbaum, 910 S.W.2d at 948.

Based on the Texas Court of Criminal Appeals’ holdings in Williams and Barrow, we

determine the State is not required to allege, as an element of the offense, the specific

identity of the destroyed evidence. See Williams, 241 S.W.3d at 923–24; Barrow, 240

S.W.3d at 142–44.

       The statute focuses not on what was destroyed, but instead focuses on whether

the accused acted with the intent of impairing its use as evidence. See TEX. PENAL CODE

ANN. § 37.09(a)(1); Barrow, 240 S.W.2d at 142–44. Though identity of the putative

evidence destroyed will be relevant at trial, it will be relevant not because it is an element

of the offense, but because it is evidence of intent. As such, the identity of the destroyed

thing is evidentiary and is not required to be included in the indictment. See TEX. CODE

CRIM. PROC. ANN. art. 21.03; TEX. PENAL CODE ANN. 37.09(a)(1); Mays, 967 S.W.2d at

406.

       We sustain the State’s sole issue.

                                    III.    CONCLUSION

       We reverse the trial court’s order quashing count one of the State’s indictment and

remand for further proceedings consistent with this opinion.


                                                                 NELDA V. RODRIGUEZ
                                                                 Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
16th day of July, 2015.

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