            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS

                          NO. PD-1317-15

                        THE STATE OF TEXAS

                                   v.

                      MARY ZUNIGA, Appellee

    ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
            FROM THE 13TH COURT OF APPEALS
                     NUECES COUNTY

       N EWELL, J., delivered the opinion of the Court, in which
A LCALA, R ICHARDSON, Y EARY, K EEL AND W ALKER, J.J., joined. Y EARY,
J. filed a concurring opinion, in which W ALKER, J., joined.
K ELLER, P.J., filed a dissenting opinion, in which K EASLER AND
H ERVEY, J.J., joined.

     When the State charges someone with tampering with physical

evidence, is the specific identity of the tampered-with evidence an

essential element of the offense? We agree with the State and the court

of appeals that it is not. State v. Zuniga, 13-14-00316-CR, 2015 WL

4381064, at *3 (Tex. App.—Corpus Christi July 16, 2015) (mem. op.)

(not designated for publication). However, the court of appeals does not
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appear to have addressed whether the language in the indictment

provided adequate notice of the charged conduct, so we remand the case

to give them an opportunity to do so.

                                           Facts

       A police officer pulled Zuniga over after she ran a stop sign in front

of her home. During the stop, the officer observed a bottle of medicine

in Zuniga’s vehicle.          When Zuniga was unable to produce a valid

prescription for the syrup, the officer arrested her and placed her in the

back of his police car. Soon after, the officer observed Zuniga reach into

her groin area and pull something out with her hands cupped. The officer

then observed Zuniga move her hands towards her mouth and lean her

head down as if to swallow “something.”1 The officer took Zuniga to the

hospital where medical professionals pumped Appellee’s stomach and

performed an x-ray. They did not find any illegal substance or a baggie.

The State neither tested the results of Appellee’s stomach purge for an

illegal substance nor requested any testing of her blood.

       The State indicted Zuniga on tampering with physical evidence.2

       1
         The State stipulated at a hearing on Appellee’s m otion to quash the indictm ent that
the officer would testify at trial that he saw Appellee swallow a white substance in a baggy.
The State also claim ed that it suspected Appellee had swallowed either cocaine or a pill.

       2
        Based upon Zuniga’s conduct after the alleged tam pering, the State also charged
Zuniga with assault on a public servant in a separate count. The only count at issue in this
                                                                                Zuniga - 3

This count in the indictment appeared as follows:




Originally, the State did not allege what Zuniga had attempted to “alter,

destroy, or conceal.”        It merely left a blank space in the indictment.

Zuniga filed a “Motion to Quash and Exception to Form of the

Indictment.”      During the hearing on that motion, the State made the

handwritten notation—“unknown substance”—on the indictment itself.

Zuniga amended her motion to quash in light of the State’s amended

pleading.

       Zuniga argued that the indictment failed as a matter of both form

and substance. Specifically, she complained that the indictment failed to

set forth the offense in plain or intelligible language and that the




appeal, however, is the count alleging that Zuniga tam pered with physical evidence.
                                                                  Zuniga - 4

indictment failed to allege two necessary elements of the offense. Finally,

she argued that the indictment did not adequately inform her of the

act(s) the State intended to rely upon to constitute the crime of

tampering with evidence.

     The State responded at the hearing that the State was not required

to allege the specific identity of the tampered-with evidence because

Zuniga’s   commission     of    the   offense   rendered   that   evidence

unidentitifiable. Then, the State argued that the elements of the offense

only required it to prove that Zuniga altered, concealed, or destroyed

some “thing.” According to the State, whether that “thing” amounted to

evidence could be proven through the circumstances of its destruction.

In other words, the State appeared to argue that the identity of the

tampered-with evidence was an evidentiary matter that did not have to

be pleaded in the indictment.

     The trial court saw two problems with the State’s case. First, the

trial court explained that the State was required to give more notice than

simply alleging a “thing.” Second, the trial court expressed concern that

the State had to prove that Zuniga knew an investigation was pending.

After a break in the hearing, the trial court granted Zuniga’s motion to

quash, stating that “the requirements of 21.02 of the Texas Code of
                                                                Zuniga - 5

Criminal Procedure had not been met.” The trial court further held that

the indictment failed to inform the defendant of the acts that the State

would rely upon to constitute the crime of tampering.

                              The Appeal

     The State appealed the trial court’s ruling. The State argued that

it was not required to allege the specific identity of the tampered-with

evidence in the indictment because it would not be required to prove that

fact in order to secure a conviction. According to the State, the “thing”

tampered with was not an element of the offense that needed to be

pleaded; it was merely an evidentiary matter that the State was not

required to allege in the indictment. In other words, the State argued

that the specific identity of the tampered-with evidence was not an

element of the offense.

     Zuniga replied that simply adding “an unknown substance” as the

object of a tampering charge did not provide her with sufficient notice of

what she was alleged to have tampered with in violation of the law. She

argued that the indictment was insufficient because it failed to provide

any description of the “thing” she was alleged to have tampered with.

Consequently, Zuniga argued the notice in the indictment did not

adequately inform her of the acts the State would rely upon to prove that
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she had committed the crime because the State had not alleged the

evidence she had purportedly destroyed.

      The court of appeals framed the issue in the case as a matter of

determining whether an “unknown substance” can be a “thing” under the

tampering statute. Zuniga, 2015 WL 4381064 at *2. As the court of

appeals phrased it:

      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.

Id.   The court of appeals properly set out the law regarding Zuniga’s

right to notice of pending criminal charges. Id. It also correctly observed

that generally, when an indictment tracks the language of a penal statute,

it will satisfy constitutional and statutory requirements. Id.

      The court of appeals analyzed the elements of the offense set out

in the tampering statute and determined that the identity of the physical

evidence at issue was not an element of the offense. Zuniga, 2015 WL

4381064 at *2. According to the court of appeals, the “identity of the

putative evidence destroyed will be relevant at trial . . . not because it is

an element of the offense, but because it is evidence of intent.” Id. at *3.

Because it was not an element of the offense, the court of appeals held
                                                                 Zuniga - 7

that the specific identity of the tampered-with evidence did not need to

be pleaded in the indictment. Id.

     We granted discretionary review to determine whether the addition

of the term “unknown substance” is sufficient to apprise a defendant of

what “thing” the State intended to prove was altered, concealed, or

destroyed. We agree with the court of appeals’ determination that the

specific identity of the tampered-with evidence is not an element of the

offense. But we remand the case to allow the court of appeals to address

whether the statutory language is completely descriptive of the proscribed

conduct such that it provided adequate notice.

                          Standard of Review

     The sufficiency of the indictment presents a question of law. Smith

v. State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). Appellate courts

review a trial judge’s rulings on a motion to quash a charging instrument

de novo. State v. Barbernell, 257 S.W.3d 248, 251-52 (Tex. Crim. App.

2008). The trial court’s ruling should be upheld if it is correct under any

theory of law applicable to the case. State v. Rhinehart, 333 S.W.3d 154,

161 (Tex. Crim. App. 2011) (applying ordinary rules of procedural default

to a State’s appeal of a trial court’s order quashing the indictment).

     The Texas and United States Constitutions grant a criminal
                                                                    Zuniga - 8

defendant the right to fair notice of the specific charged offense. U.S.

C ONST. amend. VI; T EX. C ONST. art. 1, § 10; T EX . C ONST. art. V, § 12b;

Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007); see

also State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008).

“The charging instrument must convey sufficient notice to allow the

accuse to prepare a defense.” Curry v. State, 30 S.W.3d 394, 398 (Tex.

Crim. App. 2000) (citing State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim.

App. 1998)). Toward that end, Chapter 21 of the Texas Code of Criminal

Procedure governs charging instruments and provides legislative guidance

concerning the requirements and adequacy of notice. State v. Moff, 154

S.W.3d 599, 601 (Tex. Crim. App. 2004); Ferguson v. State, 622 S.W.2d

846, 849-50 (Tex. Crim. App. 1981)(opinion on reh’g).

      With respect to indictments, Article 21.02 sets out what facts must

be included in an information and states, in part, that “[t]he offense must

be set forth in plain and intelligible words.” T EX . C ODE C RIM. P ROC. A NN.

art. 21.02(7) (West 2010). Article 21.03, provides that “[e]verything

should be stated in an indictment which is necessary to be proved.” T EX.

C ODE C RIM. P ROC. A NN. art. 21.03 (West 2010).      Finally, Article 21.04

provides that “[t]he certainty required in an indictment is such that will

enable the accused to plead the judgment that may be given upon it in
                                                                   Zuniga - 9

bar of any prosecution for the same offense.” T EX. C ODE C RIM. P ROC. A NN.

art. 21.04 (West 2010). An indictment is sufficient if it

      charges the commission of the offense in ordinary and concise
      language in such a manner as to enable a person of common
      understanding to know what is meant, and with that degree
      of certainty that will give the defendant notice of the particular
      offense with which he is charged, and enable the court, on
      conviction, to pronounce the proper judgment[.]

T EX. C ODE C RIM. P ROC. A NN. art. 21.11 (West 2010).

      We have recognized that in most cases a charging instrument that

tracks the statutory text of an offense is sufficient to provide a defendant

with adequate notice. Barbernell, 257 S.W.3d at 251; Lawrence, 240

S.W.3d at 916; Curry, 30 S.W.3d at 398.          When a statutory term or

element is defined by a statute, the charging instrument does not need

to allege the definition of the term or element. Barbernell, 257 S.W.3d

at 251; Geter v. State, 779 S.W.2d 403, 405 (Tex. Crim. App. 1989).

Typically the definition of terms and elements are regarded as evidentiary

matters. Marrs v. State, 647 S.W.2d 286, 289 (Tex. Crim. App. 1983);

see also Curry, 30 S.W.3d at 398.

      But in some cases, a charging instrument that tracks the statutory

language may be insufficient to provide a defendant with adequate notice.

Barbernell, 257 S.W.3d at 251; Curry, 30 S.W.3d at 398. This is so when
                                                                    Zuniga - 10

the statutory language fails to be completely descriptive. Barbernell, 257

S.W.3d at 251; Curry, 30 S.W.3d at 398. For example, a statute which

uses an undefined term of indeterminate or variable meaning requires

more specific pleading in order to notify the defendant of the nature of

the charges against him. Mays, 967 S.W.2d at 407. Likewise, when a

statute defines the manner or means of commission in several alternative

ways, an indictment will fail for lack of specificity if it neglects to identify

which of the statutory means it addresses. Id.; see also Barbernell, 257

S.W.3d at 251 (“The statutory language is not completely descriptive

‘when the statutes define a term in such a way as to create several

means of committing an offense, and the definition specifically concerns

an act or omission on the part of the defendant.’”) (quoting Solis v. State,

787 S.W.2d 388, 390 (Tex. Crim. App. 1990)).            In such cases, more

particularity is required to provide adequate notice.         Barbernell, 257

S.W.3d at 251.

      As we recently explained in our unanimous opinion in State v.

Jarreau, our notice jurisprudence requires appellate courts to engage in

a two-step analysis when analyzing whether a charging instrument

provides adequate notice. State v. Jarreau, No. PD-0840-16, slip op. at

4 (Tex. Crim. App. Mar. 1, 2017); see also Barbernell, 257 S.W.3d at
                                                                    Zuniga - 11

255. First, the reviewing court must identify the elements of the offense.

Jarreau, slip op. at 4.    Next, it must consider whether the statutory

language is sufficiently descriptive of the charged offense. Id.; Mays, 967

S.W.2d at 407.




        Here, Zuniga appeared to make both types of challenges to the

sufficiency of the indictment in this case. We will address each challenge

turn.

     Is the Specific Identity of the Tampered-With Evidence
                    an Element of the Offense?

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

tampering with physical evidence with the following elements:             (1) a

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

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

the investigation or official proceeding; (4) knowing that an investigation

or official proceeding is pending or in progress. T EX. P EN. C ODE A NN. §

37.09 (a)(1) (West 2010); see also Williams v. State, 270 S.W.3d 140,

142 (Tex. Crim. App. 2008).         We have recognized that the statute

contains at least two different culpable mental states: an actor must

know his action would impair the item as evidence and he must act with
                                                                Zuniga - 12

the intent to impair its availability as evidence. Stewart v. State, 240

S.W.3d 872, 873-74 (Tex. Crim. App. 2007). The statute specifies that

the putative evidence must be a record, document or thing, though it

does not require that “thing” be, in and of itself, of a criminal nature.

T EX. P ENAL C ODE A NN. § 37.09(a)(1) (West 2010); Williams, 270 S.W.3d at

144.

       The court of appeals appears to acknowledge that the indictment

must at least allege whether the “evidence” altered, concealed, or

destroyed was “a record, document, or a thing.”          Zuniga, 2015 WL

4381064 at *2.      However, the court of appeals determined that the

specific identity of the evidence at issue was not an element of the

offense. Id. The court reasoned that the identity of the tampered-with

evidence will be relevant at trial to show Zuniga’s intent, but it is not a

separate element of the offense. Id. at *3.

       The court of appeals correctly held that the specific identity of the

evidence is, as one might expect, an evidentiary issue. The plain text of

the statute uses the word “thing” to differentiate the tampered-with

evidence from either a “record” or a “document.” T EX. P ENAL C ODE A NN. §

37.09 (a)(1) (West 2010). The only time the statute specifies a particular

type of “thing” is in subsection (c) where the offense becomes a second
                                                                Zuniga - 13

degree felony if “the thing altered, destroyed, or concealed is a human

corpse.” T EX. P ENAL C ODE A NN. § 37.09 (c) (West 2010). The term “thing”

remains otherwise undefined.

     This stands in contrast to an offense in which the specific identity of

a putative object is a necessary element such as possession of a

controlled substance.   In the Controlled Substances Act, the relevant

statutory provisions explicitly identify which substances are illegal to

possess. Paragraph (a) of §§ 481.112 through 481.118 make it clear

that it is an offense to possess, manufacture or deliver a controlled

substance listed in the particular penalty group. T EX. H EALTH & S AFETY

C ODE A NN. §§ 481.112–.118. Except in the context of tampering with a

human corpse, the tampering statute does not otherwise define what

constitutes a “thing” that can be altered, concealed, or destroyed

suggesting that the specific identity of the tampered-with evidence is not

an essential element.

     Additionally, as the court of appeals properly noted, intermediate

courts have upheld convictions for tampering with evidence without

requiring the State to definitively prove exactly what evidence was

altered, concealed, or destroyed. See e.g. Barrow v. State, 241 S.W.3d

919, 923-24 (Tex. App.–Eastland 2007, pet. ref’d.) (affirming conviction
                                                              Zuniga - 14

for tampering with evidence where the defendant swallowed a “rock-like”

substance believed to be crack cocaine), Vaughn v. State, 33 S.W.3d 901,

903 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (upholding conviction

for tampering with evidence where State did not prove specific identity

of evidence destroyed). The only “element” the State must allege in the

indictment is whether the evidence at issue was “a record, a document,

or a thing.”   By alleging that Zuniga tampered with “an unknown

substance,” the State seeks to prosecute Zuniga for tampering with a

“thing,” rather than a “record” or a “document.” Thus, we agree with the

State and the court of appeals that 1) the State alleged every element of

the offense of tampering with evidence when it amended its indictment

and 2) the specific identity of the tampered-with evidence was not an

element of the offense.

          Did the Indictment Provide Adequate Notice?

     Zuniga primarily argued to the trial court that more particular

pleading is necessary to allow her to properly prepare a defense. The

trial court agreed, quashing the indictment and stating that the

indictment failed to provide sufficient notice.   As mentioned above, a

charging instrument drafted in the language of the penal statute is

generally sufficient to provide an accused with adequate notice because
                                                                Zuniga - 15

the terms of the statute inform him or her of the nature of the charge.

Mays, 967 S.W.2d at 406; Moff, 154 S.W.3d at 602 (citing Haecker v.

State, 571 S.W.2d 920, 921 (Tex. Crim. App. 1978)). But the court of

appeals was also required to take the second step and analyze whether

the terms of the statute are sufficiently descriptive of the charged

offense. Barbernell, 257 S.W.3d at 255; see also Mays, 967 S.W.2d at

407 (noting that when a statute uses an undefined term of indeterminate

or variable meaning, the State must include more specific pleadings in the

indictment in order to notify the defendant of the nature of the charges

against him). The State acknowledges that the indictment must provide

the defendant with sufficient notice to prepare a defense “even if identity

of the thing tampered with is not an element of the offense.” State’s Br.

9.

     Though purporting to address the notice issue, the court of appeals

simply held that the specific identity of the tampered-with evidence did

not need to be pleaded because it was not an element of the offense.

Zuniga, 2015 WL 4381064 at *3. The court of appeals did not conduct

an analysis of whether the terms of the statute were sufficiently

descriptive of the charged offense. Or, if it did, it did not explain how it

came to that conclusion beyond simply stating that the specific identity
                                                              Zuniga - 16

of the tampered with evidence was not an element of the offense.

     Because Zuniga prevailed in the trial court, the court of appeals was

required to uphold the trial court’s ruling if it was correct under any

theory of law applicable to the case. Rhinehart, 333 S.W.3d at 161. Yet,

the court of appeals did not address whether the language contained in

the indictment was of such indeterminate and variable meaning that it

failed to provide Appellee with adequate notice of what criminal acts she

was accused of committing. Consequently, we remand the case to afford

the court of appeals the opportunity to consider Zuniga’s challenge that

the indictment failed to provide her with adequate notice to prepare her

defense. McClintock v. State, 444 S.W.3d 15, 16 (Tex. Crim. App. 2014).

                               Conclusion

     The specific identity of the tampered-with evidence is not an

element of the offense. However, the court of appeals did not address

whether the trial court could have properly determined that more

specificity was required in the indictment in order to provide the

defendant with adequate notice of the charged conduct. We remand this

case for the court of appeals to fully address that issue.




Filed: March 8, 2017
          Zuniga - 17

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