                                                                            PD-1316-14
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
April 17, 2015                                          Transmitted 4/17/2015 12:05:26 PM
                                                          Accepted 4/17/2015 12:27:45 PM
                                                                             ABEL ACOSTA
                               IN THE                                                CLERK
                 COURT OF CRIMINAL APPEALS OF TEXAS

GEORGE ANTHONY THURSTON, §
    APPELLANT            §
                         §
V.                       §              NO. PD-1316-14
                         §
THE STATE OF TEXAS,      §
    APPELLEE             §

     ON DISCRETIONARY REVIEW OF CAUSE NUMBER 02-13-00242-CR IN
THE COURT OF APPEALS FOR THE SECOND COURT OF APPEALS DISTRICT
OF TEXAS, AT FORT WORTH, TEXAS.

                    STATE'S BRIEF ON THE MERITS

                               SHAREN WILSON
                               Criminal District Attorney
                               Tarrant County, Texas

                               DEBRA WINDSOR, Assistant
                               Criminal District Attorney
                               Chief, Post-Conviction

                               CHARLES M. MALLIN, Assistant
                               Criminal District Attorney
                               Tim Curry Criminal Justice Center
                               401 W. Belknap
                               Fort Worth, Texas 76196-0201
                               (817) 884-1687
                               FAX (817) 884-1672
                               State Bar No. 12867400
                               CCAappellatealerts@tarrantcountytx.gov

                               LISA McMINN
                               State Prosecuting Attorney
                                    TABLE OF CONTENTS

                                                                                               PAGE

INDEX OF AUTHORITIES ................................................................................ ii

STATEMENT OF THE CASE .............................................................................1

STATEMENT REGARDING ORAL ARGUMENT ...........................................2

STATEMENT OF FACTS ...................................................................................2

SUMMARY OF THE STATE’S ARGUMENT ................................................12

STATE’S RESPONSE TO APPELLANTS’ QUESTIONS FOR REVIEW .....13

        I. ARGUMENTS AND AUTHORITIES ................................................13

        II. NECESSITY OF REMAND ................................................................25

CONCLUSION AND PRAYER.........................................................................28

CERTIFICATE OF COMPLIANCE ..................................................................29

CERTIFICATE OF SERVICE ...........................................................................29




                                                     i
                                      INDEX OF AUTHORITIES


                                                                                                              Page(s)

Cases

Barrow v. State,
  241 S.W.3d 919 (Tex.App.- Eastland 2007, pet. ref’d) .................... 18, 19, 21, 24

Boykin v. State,
  818 S.W.2d 782 ............................................................................................. 16, 17

Briscoe v. State,
   2013 WL 4822878 (Tex.App.-Austin 2013, no pet.) ...................................passim

Dowthitt v. State,
  931 S.W.2d 244 (Tex.Crim.App.1996) ............................................................... 17

Eddins–Walcher Butane Co. v. Calvert,
  156 Tex. 587, 298 S.W.2d 93 (1957) ................................................................... 17

Gonzales v. State,
  2005 WL 2951481 (Tex.App.-Dallas 2005, no. pet.)(not designated
  for publication) .................................................................................................... 27

Lumpkin v. State,
  129 S.W. 3d 659 (Tex.App.-Houston [1st Dist] 2004, pet. ref’d) ...............passim

Maheffey v. State,
  364 S.W.3d 908 (Tex.Crim.App.2012) ............................................................... 17

Morter v. State,
  551 S.W.2d 715 (Tex.Crim.App.1977) ............................................................... 17

Ortiz v. State,
   2005 WL 2951505 (Tex.App.-Dallas 2005, pet. ref’d)(not
   designated for publication) .................................................................................. 27

Panell v. State,
  7 S.W.3d 222 (Tex.App.-Dallas 1999, pet. ref’d) ............................................... 15

                                                            ii
State v. Smith,
   436 S.W.3d 751 (Tenn. 2014) ................................................................. 20, 21, 24

State v. Smith,
   No. M2011-00440-CCA-R3-CD, 2012 WL 2674524
   (Tenn.Crim.App. July 6, 2012)(Application for Permission to
   Appeal Granted by Supreme Court Dec. 13, 2012)(not designated
   for publication) ................................................................................................... 19,

Thurston v. State,
  No. 02-13-00242-CR, 2014 WL 3536955 (Tex.App.-Fort Worth
  July 19, 2014, pet. granted)(not designated for publication) .......................... 2, 27

Whitelaw v. State,
  29 S.W.3d 129 (Tex.Crim.App.2000) ................................................................. 15

Williams v. State,
   270 S.W.3d 140 (Tex.Crim.App.2008) ......................................................... 18, 22

Statutes

Tennessee Code Annotated section 39-16-505 ........................................................ 19

TEX. GOV’T. CODE § 311.021(2) ........................................................................ 16, 17

TEX. GOV'T. CODE § 311.011(a) ............................................................................... 17

TEX. PENAL CODE § 6.03(b) ..................................................................................... 18

TEX. PENAL CODE § 37.09(a)(1) ........................................................................passim

Other Authorities

AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1339
  (3rd ed. 1992) ...................................................................................................... 16

RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 1433 (2d
  ed.2001)............................................................................................................. 16n

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1669 (1st ed.
  1993) ................................................................................................................... 16

                                                             iii
                               IN THE
                 COURT OF CRIMINAL APPEALS OF TEXAS


GEORGE ANTHONY THURSTON, §
    APPELLANT            §
                         §
V.                       §                        NO. PD-1316-14
                         §
THE STATE OF TEXAS,      §
    APPELLEE             §

     ON DISCRETIONARY REVIEW OF CAUSE NUMBER 02-13-00242-CR IN
THE COURT OF APPEALS FOR THE SECOND COURT OF APPEALS DISTRICT
OF TEXAS, AT FORT WORTH, TEXAS.

                      STATE'S BRIEF ON THE MERITS

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      This brief is filed on behalf of the State of Texas, by and through Sharen

Wilson, Criminal District Attorney of Tarrant County.


                         STATEMENT OF THE CASE

      The Appellant was indicted in the 371st District Court of Tarrant County, Texas.,

in Cause No. 1286534D for the murder of James Anders and in Cause No. 1293819D

for the offense of Tampering with Evidence pursuant to § 37.09(a)(1) and §

37.09(d)(1) of the Texas Penal Code. [RR: I III at 5]. The murder and tampering cases

were consolidated for trial. [RR: II at 22-23].   A jury acquitted Appellant on the

murder charge, but convicted him on the tampering charge. [RR: VII at 6]. The same

                                          1
jury assessed his punishment at eighty (80) years’ confinement in the Institutional

Division of the Texas Department of Corrections. [CR: I at 62]. Appellant‘s conviction

was affirmed by the Second Court of Appeals in Thurston v. State, No. 02-13-00242-

CR, 2014 WL 3536955 (Tex.App.-Fort Worth July 19, 2014, pet. granted)(not

designated for publication). Appellant filed a motion for rehearing which was denied

by the Second Court of Appeals on August 29, 2014. This Court granted Appellant’s

Petition for Discretionary Review.


               STATEMENT REGARDING ORAL ARGUMENT

      The State is in agreement with the Appellant that oral argument would be

helpful in this case. This case involves an issue of first impression concerning the

statutory construction of Section 37.09(a)(1) of the Texas Penal Code, Tampering with

or Fabricating Physical Evidence.


                             STATEMENT OF FACTS

      On May 28, 2012 Sean Baker, a train engineer with the Fort Worth and Western

Railroad, noticed something out of place in a vacant lot alongside the railroad crossing

located at Eighth Avenue and Windsor Place, commonly known as Windsor Hill. [RR:

IV at 45-46, 49]. After a couple of days, Baker and his fellow employees spotted the

article. [RR: IV at 52-53]. They then decided to see what was in the field. On May 28,


                                           2
2012, two days before, they almost hit a white pick-up truck crossing the railroad

tracks at that same location. [RR: IV at 52].

      From the direction of the white truck, Baker detected a smell emanating from the

vacant field. [RR: IV at 57]. The article observed in the field looked like a pile of

rubble wrapped in a sleeping bag with a foot sticking out of it. [RR: IV at 58]. At that

time, Baker could not stop the train because they would not be able to get the train

moving again. Id.; [RR: IV at 58; State’s Exhibits 102, 103]. Baker then called his

supervisor, Jerry Stienkamp. [RR: IV at 58].

      Steinkamp, the terminal operations director for Fort Worth and Western

Railroad, dispatched Daniel Guido to the railroad crossing at Eighth Avenue and

Windsor Place. [RR: IV at 63]. The police were called once it became obvious that

there was a body concealed in the sleeping bag. [RR: IV at 63-64]. The police

discovered that there was indeed a body wrapped in a sleeping bag with the head and

feet sticking out. [RR: IV 71-72; State’s Exhibits 8-13].

      Fort Worth Patrol Officer John Souther was dispatched at about 5:00 p.m. to the

scene. [RR: IV at 69-70]. As Officer Souther walked down the railroad tracks toward

the body, he began to smell death. [RR: IV at 71]. He saw the head and feet sticking

out of the sleeping bag. Id. Officer Souther also noticed that a moving blanket and a

sleeping bag covering the body had been bound by a blue rope or nylon twine. [RR: IV


                                           3
at 75]. He contacted his supervisor, followed by the crime-scene and homicide

divisions. [RR: IV at 77].

      Once at the location, Detective Matthew Barron observed the victim’s body.

[RR: IV at 168]. A cell-phone clip, but no cell phone, was on the victim’s body.

[RR: IV at 170]. The cell phone clip raised the possibility that the victim had a cell

phone. Id. The police recovered a receipt, but it was not completely legible. Id. The

officers deciphered three letters, O-W-N, which Barron concluded could be “town” or

“crown.” Id.

      Dr. Lloyd White, a contract pathologist functioning as a Tarrant County deputy

medical examiner, performed the autopsy and examination of the body later identified

as Walter James Anders. [RR: IV 102-103, 110]. Dr. White described the numerous

gunshot wounds inflicted on the victim. [RR: IV at 118-12, 135; State’s Exhibits 27,

28]. In addition to wounds on his feet, hand, shoulder, and thigh, there were several

bullet wounds to the victim’s chest. [RR: IV at 124]. The victim’s body demonstrated

a cluster of exit wounds. Id. Four bullets were recovered from Anders’ body. [RR: IV

at 117]. Dr. White concluded that the cause of death was penetrating and perforating

handgun wounds of the chest. [RR: IV at 139].

      Detective Barron was able to contact Anders’ mother, who told him that her son

had a cell phone and gave him his cell phone number. [RR: IV 176]. She also


                                          4
informed Detective Barron that Anders was living somewhere in the Arlington Heights

neighborhood, possibly in a garage apartment.

      Detective Barron started looking for stores with names like crown or town and

found Crown Liquor on Vickery Street. Id. It was established that the receipt came

from Crown Liquor, which was relatively close to where the body was found. [RR: IV

at 177-80]. Crown Liquor was also in the general vicinity or part of town where

another State’s witness, Lisa Juran, lived. [RR: IV at 180].

      Detective Barron obtained Mr. Anders’ cell phone records. [RR: IV at 181].

Those records indicated a call directly to Juran. [RR: IV at 182-83]. Juran lived in the

Arlington Heights neighborhood. [RR: IV at 180]. Crown Liquor was in the general

vicinity of Juran’s house. Id. The detectives drove by her house and saw that there was

a detached garage. Id. Officers also discovered that a white 1989 Ford F250 pick-up

truck like the one spotted by the railroad employees was registered to Juran. [RR: IV

at 183]. It appeared that Juran had contacted the victim within a few days of when his

body was found. [RR: IV at 184].

      Detective Barron prepared and distributed a flier in an attempt to get information

on Anders’ murder. [RR: IV at 185]. Detective Barron and Detective Sullivan went to

Juran’s house on June 12, 2012. Id. They engaged Juran in conversation, and she was




                                           5
in an extreme state of nervousness. [RR: IV at 190-91]. At that time, the detectives

asked permission and were granted permission to look in the garage. [RR: IV at 193].

      Once the detectives were in the garage area, they observed some tarps and a

lounge chair identical to the one found with Anders’ body. [RR: IV at 194, 197; State’s

Exhibits 44, 61-66]. They also saw a high-speed fan running and a bike belonging to

the victim. [RR: IV at 198-99]. Detective Sullivan could smell decomposition. [RR:

IV at 199]. At that point, the detectives obtained a search warrant. Id.

      Inside the house, detectives found two weapons which were identified as a

Taurus nine-millimeter pistol in its case, an empty box for another Taurus pistol, and a

twelve-gauge shotgun. [RR: IV at 203]. Barron obtained ATF trace reports on the

purchase of the guns, which were identical nine-millimeter pistols purchased at the

same place one month apart. [RR: V at 16].

      Inside the garage, the officers noticed air fresheners strategically placed

throughout the structure and bricks on the floor with large red stains that appeared to

be blood. [RR: IV at 203-04]. They observed and seized three shell casings on the

floor. [RR: IV at 204-05]. Juran had given consent to the search of her house and

garage during her interview and prior to the issuance of the warrants. [RR: IV at 207].

During the search of the home, the officers seized a knife from a little dresser inside




                                           6
the front doorway. [RR: IV at 215; State’s Exhibits 118-19]. During the crime-scene

search of the garage, CSI discovered one bullet fragment. [RR: V at 30].

       Based on information that the investigating officers obtained during the search

of the Juran home and garage, and their conversations with Lisa Juran, an arrest

warrant was obtained for Appellant on June 13, 2012. [RR: IV at 215-19]. On June

20. 2012, Appellant was apprehended. [RR: IV at 218- 219.] The 1989 white Ford

pick-up truck had been seized from the arrest scene and placed in a secure bay at the

auto pound. Id. A search warrant for the truck was obtained and executed on June 21,

2012. [RR: IV at 218-20; State Exhibit No. 133]. During the search of the truck, the

officers retrieved a series of swabs taken and collected of stains for possible DNA

testing. [RR: IV at 224-25]. Further, once Appellant was in custody, a search warrant

issued to take a buccal swab. [RR: IV at 227-28]. Additionally, major case fingerprints

were obtained. [RR: IV at 227].

       Appellant’s arrest was made in the 1000 block of Henderson Avenue in the

downtown area of Fort Worth. [RR: V at 197-204]. He was spotted walking

southbound with a gas can in his hand. [RR: V at 204]. When the Fugitive Unit

attempted to arrest Appellant, he failed to cooperate, and he received injuries because

of his resistance. Id.




                                          7
      Juran testified at trial that she had known Anders since 2011 and that he did yard

work and odd jobs for her. [RR: VI at 13, 18]. She let Anders stay in her garage

occasionally when he did not have any shelter. [RR: VI at 14]. The garage area was

used as some type of “man cave” for Appellant. [RR: VI at 15-17]. Juran admitted that

she had a 1989 white Ford F250 with a 460 engine. [RR: VI at 18].

       On the day of the murder, Juran gave Anders a cash advance to do some work

and left the house. Appellant and Anders were still there working on some chores.

[RR: VI at 6]. When she returned home, neither Appellant nor Anders was there, and

the white pick-up truck was gone. [RR: VI at 20-21]. The following morning, she

started calling Anders on his cell phone, but she could not reach him. [RR: VI at 29-

30]. She attempted to call him three or four times. [RR: VI at 31 ].

      Eventually, Juran detected a foul odor coming from around the house. [RR: VI

at 39]. She told Appellant it smelled like dead animals, and Appellant replied that he

would find the problem and take care of it. [RR: VI at 40]. She thought the odor was

something like a dead mother raccoon. [RR: VI at 42].

      On the day after Memorial Day, Appellant asked Juran to help him load

something into the pick-up truck. [RR: VI at 42-43]. It was 11:00 p.m. and Juran was

wearing her nightgown. Appellant said to her, “Baby, I hate to ask you to do this, but

could you come help me move something?” She replied that she would. [RR: VI at 43].


                                           8
The truck was backed into the driveway, and she saw a large object rolled up and tied

in a big blue tarp. [RR: VI 45-46, 48]. Juran had a mover’s blanket that she had

previously found on the side of I-35, which was also used to wrap the victim. [RR: VI

at 47]. Juran did not see anything inside the tarp, and she had no knowledge about

what type of object was wrapped up in the tarp. [RR: VI at 48]. She did note that there

was a foul odor emanating from the tarp. [RR: VI at 49].

      Appellant and Juran loaded the smelly object into the pick-up truck using a

particle board as a ramp to assist them. [RR: VI at 50]. Juran testified that she

assumed Appellant was going to take the tarp and the object wrapped up in it to a

dumpster. [RR: VI at 53]. She was asleep when Appellant returned from disposing of

the tarp. [RR: VI at 55]. When Juran found out about the flier distributed by the

police, she began to suspect that something had happened to Anders. [RR: VI at 56].

      Appellant eventually told Juran that Anders was sitting on one of the lounge

chairs in the so-called “man cave” garage and had consumed about a half bottle of rum.

There was a click in Anders’ eye, and he came after Appellant. [RR: VI at 58-59].

According to Appellant, Anders had a knife in his hand and was trying to get

Appellant. [RR: VI at 60]. Appellant told Juran that he picked Anders up and threw

him against the wall. Anders did not drop the knife, and Appellant told him to put the

knife down; however, Anders again came after him, and Appellant “unloaded” into


                                          9
him. [RR: VI at 61]. Appellant specifically told Juran that, when Anders came after

him with a knife the second time, he automatically reached for the gun and did what

the Army trained him to do, i.e., he grabbed the gun and started shooting. [RR: VI at

62].

       Appellant testified on his own behalf about the events. Appellant told the jury

that the victim was a heavy drinker, but he was not around Appellant when he did.

[RR: VI at 138]. He further testified that, in the past two months, Anders’ drinking got

out of control, and he started getting in trouble in various places where he was living

and staying. [RR: VI at 140]. Appellant was in the Army, and he believed that “[i]f

someone’s trying to hurt, harm, or kill me, myself, my love ones, I have a right to

defend myself and my family and my love ones.” [RR: VI at 144].

       Appellant explained that, around 10:00 a.m. on the morning of Anders’ death, he

went to a local liquor store and bought a six-pack of beer and cigarettes for himself and

a bottle of rum for Anders. [RR: VI at 151]. The two men then went back to Juran’s

house. The beer went into the cooler, and the rum was put on the garage work table.

[RR: VI at 152]. Around 2:30 p.m., Appellant decided to clean one of Juran’s guns, so

he went to the bedroom to retrieve it. [RR: VI at 154]. When he started to clean the

pistol, he and Anders had a few words about drinking. [RR: VI at 156]. Appellant

thought Anders had been drinking too much, and they started arguing. Id. Appellant


                                           10
testified that he then asked Anders to go ahead and gather up the tools and call it a day,

but Anders did not want to do that and wanted to continue working. [RR: VI at 157].

The argument grew louder and more abusive. Id.

        Appellant claimed that Anders had the knife out and that he grabbed Anders by

the wrist and hurled him toward the wall. [RR: VI at 158]. Anders was on the ground

and still had the knife. Appellant grabbed the pistol off the table and told Anders to

drop the knife. Appellant testified, “He ain’t dropping it. He’s looking right at me.

He’s just about got everything cleared off of him, and I just pointed the pistol and

started firing.” [RR: VI at 159]. Appellant admitted firing all of the rounds in the

magazine into Anders. [RR: VI at 160-61].

        Appellant eventually put Anders’ body in a sleeping bag, threw a tarp over him,

folded it up, rolled it up, and tied it with blue rope so that nothing was exposed. [RR:

VI at 170-72]. He backed the truck up to the garage and had Juran assist him in putting

the wrapped-up body in the truck. [RR: VI at 173]. He drove the truck down by the

railroad crossing, where there was a vacant lot, and disposed of the body. [RR: VI at

176].

        The next morning, Appellant went back into the garage and splashed a bottle of

ammonia around. He broke down both guns into parts like he was going to clean them,




                                           11
gathered the parts in plastic bags, and went around disposing of the parts at stores and

job sites. [RR: VI at 181, 223-26].

      After both sides rested and closed, the trial court gave the jury its instructions.

[CR: I at 43-47]. The court’s charge in cause number 1293819D instructed the jury

that Appellant could be convicted for tampering with physical evidence, a human

corpse, under § 37.09(d)(1) or in the alternative under § 37.09(a)(1). [CR: I at 44-45].

After deliberating the jury returned a general verdict of “guilty” to the tampering

allegation. [CR: I at 48].

                  SUMMARY OF THE STATE’S ARGUMENT

      The Second Court of Appeals correctly adopted the statutory construction

analysis performed by the Houston Court of Appeals in Lumpkin v. State, 129 S.W. 3d

659, 663 (Tex.App.-Houston [1st Dist] 2004, pet. ref’d). In order to give full effect to

all the words, terms and phrases in § 37.09(a)(1), the word “pending” meant

impending. Appellant would render the use of the word “pending” as an alternative

to the use of the phrase “in progress” null and void. He would reduce subsection (a)(1)

to nothing more than an exercise in redundancy, rendering that portion of the statute

useless.




                                          12
  STATE’S RESPONSE TO APPELLANTS’ QUESTIONS FOR REVIEW

Appellant’s Questions For Review:

       In the context of tampering with evidence, how far does the “impending or

about to take place” definition of “pending” extend? Is it limited to investigations

flowing directly from the defendant’s actions? Or does it extend to situations where the

defendant is both temporally and proximately removed from the initiation of the

investigation.

State’s Response:

      The Second Court of Appeals was correct in utilizing the definition of “pending”

meaning “impending” as analytical construct in measuring the sufficiency of the

evidence under Section 37.09(a)(1) so that all the language in the provision was given

effect and to avoid redundancy.

                                 I.
                      ARGUMENTS AND AUTHORITIES

      Put simply, the Fort Worth Court of Appeals was correct in utilizing the

appropriate definition of the term “pending” as articulated in Lumpkin v. State, 129

S.W. 3d at 663, as an analytical construct to measure the sufficiency of the evidence

for a conviction under § 37.09(a)(1). This provision was meant to embrace factual

scenarios such as in the instant case. Section 37.09(a)(1) states:

      a) A person commits an offense if, knowing that an investigation or

                                          13
      official proceeding is pending or in progress, he:

      (1) alters, destroys, or conceals any record, document, or thing with intent
      to impair its verity, legibility, or availability as evidence in the
      investigation or official proceeding.

      The essence of Appellant’s complaint under § 37.09(a)(1) is that he interprets

the phrase “pending or in progress” to require that the investigation or official

proceedings have had to formally commence before the actual tampering of the

physical evidence transpired. In other words, Appellant’s entire argument is that, in

order for the evidence to be sufficient under § 37.09(a)(1), the evidence had to

establish that he knew that an actual investigation was pending, in that it was

underway, when he concealed the corpse of James Anders. He contends that it was not,

that the investigation was both temporally and proximately removed, and that the

evidence was insufficient to support his conviction. His interpretation has been and

should be rejected.

      Appellant eschews the Lumpkin analysis of the term “pending or in progress” in

the context of determining sufficiency under subsection (a)(1). The Lumpkin court on

this matter wrote:

      At first blush, the terms “pending” and “in progress” appear to be
      synonymous. Indeed, one definition of the adjective “pending” is
      “remaining undecided; awaiting decision or settlement; unfinished.”
      Random House Webster's Unabridged Dictionary 1433 (2d ed.2001).
      However, one of the cardinal principles of statutory construction is that
      we generally presume that every word in a statute has been used for a

                                          14
      purpose and that each word, phrase, clause, and sentence should be given
      effect if reasonably possible. See Whitelaw v. State, 29 S.W.3d 129, 131
      (Tex.Crim.App.2000). To avoid redundancy from use of the terms
      “pending” and “in progress,” we look to a second definition of the
      adjective “pending,” which is “about to take place; impending.” Random
      House Webster's Unabridged Dictionary 1433 (2d ed.2001). Construing
      “pending” as meaning “about to take place, impending” places the Texas
      statute in harmony with other jurisdictions using the Model Penal Code
      terminology “believing that an official proceeding [or investigation] is
      pending or may be [or is about to be or is likely to be] instituted.” Model
      Penal Code § 241.7; Colo.Rev.Stat. Ann. § 18–8–610 (West 2003);
      D.C.Code Ann. § 22–723 (2001); Fla. Stat. Ann. § 918.13 (West 2003);
      Ky.Rev.Stat. Ann. § 524.100 (Banks–Baldwin 2003); Mont.Code Ann. §
      45–7–207 (2002); Ohio Rev.Code Ann. § 2921.12 (West 2003); Utah
      Code Ann. § 76–8–510.5 (2003). Accordingly, we hold that the term
      “pending” in the Texas tampering-with-evidence statute means
      “impending, or about to take place.”

Lumpkin v. State, 129 S.W.3d at 663. The Lumpkin Court severely criticized the

Dallas Court of Appeals’ decision in Panell v. State, 7 S.W.3d 222, 223 (Tex.App.-

Dallas 1999, pet. ref’d), and commented that it disagreed with that court’s

interpretation of § 37.09(a)(1) because it failed to speak to the meaning of the terms

“pending” and “in progress.” Lumpkin v. State, 129 S.W3d at 663.

      The Lumpkin Court relied on one of the cardinal principles of statutory

construction: the reviewing court must generally presume that every word in the

provision has been used for a purpose and each word, phrase, clause, and sentence

should be given effect if reasonably possible. Id., citing, Whitelaw v. State, 29 S.W.3d

129, 131 (Tex.Crim.App. 2000). In keeping with that principle, the Court looked to


                                          15
the full definition of “pending” which included “about to take place, impending.”1

This construction gave effect to both “pending” and “in progress.” Thus the Court

determined that the term “pending” in the Texas tampering-with-evidence statue meant

“impending, or about to take place” for the purpose of determining the sufficiency of

evidence. Id. This definition also put the Texas provision in harmony with other

jurisdictions that used Model Penal Code terminology. Lumpkin v. State, 129 S.W.3d

at 663.

         Appellant criticizes Lumpkin for relying on a single source in arriving at a

definition of “pending.” However, other dictionaries are likewise consistent with the

Random House definition. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

1669 (1st ed. 1993); THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH

LANGUAGE 1339 (3rd ed. 1992).

         Also, the Lumpkin analysis is consistent with the Code Construction Act, TEX.

GOV’T. CODE § 311.021(2). The starting point in any question of statutory construction

is the text of the statute itself. When a statute is clear and unambiguous, reviewing

courts apply the plain meaning of its words. Boykin v. State, 818 S.W.2d 782, 785–786

& 786 n. 4 (Tex.Crim.App.1991). Next, the courts examine extratextual factors only

when the words of the statute are ambiguous or the plain meaning would lead to absurd


1
    The Court relied on the RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 1433 (2d

                                            16
results. Id. In determining plain meaning, “[w]ords and phrases shall be read in context

and construed according to the rules of grammar and usage.” TEX. GOV'T CODE §

311.011(a); Dowthitt v. State, 931 S.W.2d 244, 258 (Tex.Crim.App.1996). More to

the point, the Code Construction Act mandates that the appellate courts presume that

“the entire statute is intended to be effective.” TEX. GOV'T. CODE § 311.021(2);

Dowthitt v. State, 931 S.W.2d at 258. “Every word in a statute has been used for a

purpose and each word, phrase, clause, and sentence should be given effect if

reasonably possible.” Maheffey v. State, 364 S.W.3d 908, 913 (Tex.Crim.App.2012)(In

interpreting statutes, we presume that the Legislature intended for the entire statutory

scheme to be effective); Dowthitt v. State, 931 S.W.2d at 258; Morter v. State, 551

S.W.2d 715, 718 (Tex.Crim.App.1977), quoting Eddins–Walcher Butane Co. v.

Calvert, 156 Tex. 587, 591, 298 S.W.2d 93, 96 (1957). By taking the approach

utilized in Lumpkin the courts gave effect to the entire statute, assigning a meaning to

each phrase and word, thus, “pending” and “in progress” were different covering the

full gambit of situations dealing with tampering of evidence.

       Likewise, other courts of appeals have approved of the Lumpkin statutory

construction. In Briscoe v. State, 2013 WL 4822878 (Tex.App.-Austin 2013, no pet.),

the defendant was indicted both for the offense of murder and tampering-with-


ed.2001).

                                          17
evidence. As to the tampering charge it was apparent that Briscoe had concealed the

murder victim’s body in a wooded green belt area located one-half block from his

father’s home. Briscoe claimed that the evidence was insufficient to establish the

tampering charge, because the State failed to prove beyond a reasonable doubt that he

knew that an investigation was pending when he concealed the body. Rejecting the

Pannell rationale and citing this Court’s holding in Williams v. State, 270 S.W.3d 140,

142-43 (Tex.Crim.App.2008) and TEX. PENAL CODE § 6.03(b), the Austin Court noted

that regarding the actor’s knowledge of the pending investigation, a “person acts

knowingly, or with knowledge, with respect to the ... circumstances surrounding his

conduct when he is aware … that the circumstances exist.” The Court then went on to

seemingly approve the notion that the State met its burden if it established that the

defendant was aware an investigation was “impending or about to take place.” Briscoe

v. State, 2013 WL 4822878 at *6.

      In Barrow v. State, 241 S.W.3d 919 (Tex.App.- Eastland 2007, pet. ref’d), the

Eastland Court adopted the Lumpkin statutory construction analysis, and explained:

      Barrow relies upon Lumpkin v. State, 129 S.W.3d 659 (Tex. App.-
      Houston [1st Dist.] 2004, pet. ref'd). There, the court held that the
      evidence was insufficient to sustain a conviction for tampering when the
      defendant swallowed cocaine after being pulled over for speeding. The
      court noted that Section 37.09(a) provided alternative methods for
      alleging knowledge of an investigation-either that it be “pending” or “in
      progress.” Lumpkin, 129 S.W.3d at 663. To distinguish between them, the
      court held that “pending” means “about to take place; impending.” Id.

                                          18
      (citing Random House Webster's Unabridged Dictionary 1433 (2d
      ed.2001)). The court noted that the indictment alleged only that an
      investigation was in progress. Because the only investigation in progress
      when the defendant swallowed the cocaine was the traffic stop, the court
      held that the evidence was insufficient. Id. The clear import of the court's
      opinion, however, is that, if the indictment had alleged that the
      investigation was “pending,” then the evidence would have been
      sufficient. Lumpkin v. State, 129 S.W.3d at 923.

Id. Thus, when the indictment alleges “pending” the Lumpkin rationale is applicable.

      Initially, the State pointed out to the Second Court of Appeals that the Tennessee

Court of Criminal Appeals in interpreting its own tampering provision, which was

adopted by the Tennessee Legislature from § 37.09 of the Texas Penal Code, approved

the Lumpkin statutory construction of subsection (a)(1) by stating, “[w]e are persuaded

that the Texas Court of Appeals’ reasoning is correct and conclude that “pending”

means “impending or about to take place.” Once the police are notified, an

investigation is “in progress.” State v. Smith, No. M2011-00440-CCA-R3-CD, 2012

WL 2674524, at *9 (Tenn.Crim.App. July 6, 2012)(Application for Permission to

Appeal Granted by Supreme Court Dec. 13, 2012)(not designated for publication).

      In the interim, the Tennessee Supreme Court accepted the Smith appeal and

considered the issue concerning the meaning of “pending” in its own tampering

provision, Tennessee Code Annotated section 39-16-505. The Court noted that the

Texas version of tampering was a derivation of the Model Penal Code, and that

Tennessee adopted a version of tampering that proscribed similar conduct and shared

                                          19
common elements with the Texas tampering statute. State v. Smith, 436 S.W.3d 751,

762-63 (Tenn. 2014). Most importantly, both Tennessee and Texas departed from the

Model Penal Code in its use of the alternative terms “pending” or “in progress.” Id.

The Court followed the Lumpkin Court’s reasoning, writing:

      As an issue of first impression, we find it helpful to look to other
      jurisdictions to determine the meaning of “pending” or “in progress.”
      Cooper v. Glasser, 419 S.W.3d 924, 927 (Tenn.2013). In Lumpkin, the
      Texas Court of Appeals, in construing the Texas fabricating evidence
      statute, acknowledged that a recognized definition of “pending” is
      “remaining undecided; awaiting decision or settlement; unfinished.” 129
      S.W.3d at 663 (quoting Random House Webster's Unabridged Dictionary
      1433 (2d ed.2001)). The Texas court recognized, however, that this
      definition of “pending” would create a redundancy in the statute. Id. As
      the court noted, “one of the cardinal principles of statutory construction is
      that we generally presume that every word in a statute has been used for a
      purpose and that each word, phrase, clause, and sentence should be given
      effect if reasonably possible.” Id. The Lumpkin court therefore
      determined that the term “pending” within the Texas fabricating evidence
      statute means “impending, or about to take place.” Id.

       Because Tennessee adopted the Texas version of the Model Penal Code,
      we find the reasoning in Lumpkin persuasive. We also employ the rule of
      statutory construction in which we presume that “every word in a statute
      has meaning and purpose and should be given full effect if so doing does
      not violate the legislature's obvious intent.” Casper, 297 S.W.3d at 683.
      We are likewise unable to conclude that the General Assembly intended
      to define the term “pending” in a manner that would be redundant with
      the alternative term “in progress.” We therefore hold that the term
      “pending” in Tennessee Code Annotated section 39–16–503 means
      “impending.”

State v. Smith, 436 S.W.3d at 763. Because Texas employs a variation of the

tampering-with-evidence provision that includes alternate terms in § 37.09(a)(1)

                                           20
the holdings of Smith, Lumpkin and Briscoe are of sound reasoning as they give

full play to the meaning of all the words, terms, and phrases in the provision.

      The statutory construction originally done by the Lumpkin Court and followed

by the Second Court of Appeals in this case, and by other Courts in Texas including

Briscoe, and Barrow, and by the Tennessee Supreme Court in State v. Smith, simply

invoked the presumption that every word in a statute was used for a purpose and that

each word, phrase, clause, and sentence was to be given effect. Lumpkin v. State, 129

S.W.3d at 663. Taking the approach suggested by Appellant would mean that the word

“pending” and the phrase “in progress” are synonymous. Such a narrow position would

render § 37.09(a)(1) redundant and would make the use of the phrase “in progress”

useless if not void. The Fort Worth Court of Appeals’ opinion neither extends the

definition beyond the scope of the statute nor contravenes the meaning of the language

the legislature used in promulgating it.

      Thus, as to Count One, Paragraph Two, when the Lumpkin definition of

“pending” is applied to TEXAS PENAL CODE § 37.09(a)(1), the investigation was

“impending.” Lumpkin v. State, 129 S.W.3d at 663; see Barrow v. State, 241 S.W.3d

at 923; Briscoe v. State, No. 03-11-00014-CR, 2013 WL 4822878, at *6; State v.

Smith, 436 S.W.3d at 762-63. Viewing all the evidence in the light most favorable to

the verdict as set out under this issue in reference to Count One, any rational juror


                                           21
could have concluded beyond a reasonable doubt that Appellant was guilty of

tampering with or fabricating physical evidence.

      Appellant claims the cases illustrate the need for the defendant’s or a third

party’s proximity to the investigation in order for the evidence to be sufficient. This

proposition is without merit. First, to mandate such a requirement would be to graft an

additional element onto § 37.09(a)(1), and a reading of the statute does not support the

conclusion that a defendant’s or a third party’s proximity would be a constituent

element of the offense. See Williams v. State, 270 S.W.3d at 144.

      Second, even if this Court were to require some type of proximity, Appellant’s

own testimony provided ample evidence to support a conclusion of legal sufficiency.

Appellant testified that he shot the victim over an argument concerning James Anders’

drinking at Juran’s home. Appellant claimed he acted in self-defense after he was

attacked by Anders with a knife. [RR: VI at 156-63]. He admitted getting off

seventeen rounds and that Anders’ body had twelve wounds. [RR: VI at 160]. As to

concealing Anders’ body, Appellant’s testimony reflected:

   • Appellant knew he was in trouble because he had just shot a person and he had a

      prior felony conviction. [RR: VI at 167].

   • Appellant didn’t want to bring any attention to the location where the crime took

      place. [RR: VI at 176].


                                          22
• Appellant picked up everything he could in the garage where the shooting took

   place. [RR: VI at 170].

• Appellant got out a sleeping bag, put James Anders in the bag and zipped him

   up in it. [RR: VI at 176].

• Appellant threw a blue tarp over Mr. Anders. Id.

• Appellant roped-up the tarp, backed up the truck to the garage, had Juran assist

   him and put the corpse in the bed of the truck. [RR: VI at 173].

• After putting items in the truck, Appellant went and got bleach and splashed it

   around the garage. [RR: VI at 175].

• The next morning, Appellant took a bottle of ammonia and splashed it around

   the garage because of the smell in there. [RR: IV at 175].

• Appellant drove the truck down to the railroad tracks and left the corpse in that

   area. [RR: VI at 176].

• After dumping the body Appellant continued to cleanse the garage where the

   shooting took place. [RR: VI at 176-177].

• Appellant took the pistol he shot Anders with and another gun, broke them into

   parts, gathered up the parts, put them in plastic bags and disposed of them in

   various dumpsters. [RR: VI at 181].

• Appellant saw a flier at a convenience store concerning James Anders, and felt

                                      23
       good the police didn’t know who committed the crime. [RR: VI at 183].

   • Appellant knew that Anders’ body would eventually be found and a police

       investigation would ensue. [RR: VI at 245].

       The scenario cast by the evidence in this case is exactly the type of situation that

should be within the purview of a tampering-with-evidence provision such as § 37.09.

        In this case, Appellant was charged with tampering with physical evidence, a

human corpse, under subsections (a)(1) of § 37.09 TEX. PENAL CODE, and under the

plain and unambiguous language of statute, and consistent with Texas jurisprudence,

the evidence was sufficient to establish his guilt beyond a reasonable doubt. Appellant

concealed the human corpse of James Anders knowing an investigation was pending

with the intent to impair its verity or availability in the investigation. Lumpkin v. State,

129 S.W.3d at 663; see Barrow v. State, 241 S.W.3d at 923; Briscoe v. State, No. 03-

11-00014-CR, 2013 WL 4822878, at *6; State v. Smith, 436 S.W.3d at 762-63.

       In Appellant’s brief, he attempts to create a dichotomy between Lumpkin and

Briscoe and the facts of the instant case. Appellant fabricates the proverbial straw-man,

the sheriff’s deputy making the traffic stop before Lumpkin swallowed the contraband,

and the driver of the prostitute in the Briscoe case. Accordingly, they were the

individuals that could investigate or report the defendants’ actions to the appropriate

authorities. See Appellant’s Brief at 11-12. This in reality is a false narrative. Like in


                                            24
Lumpkin and Briscoe, the evidence paints a picture of a criminal trying to distance

himself from an investigation he knew was going to result. Appellant did not want any

investigation taking place at the Juran home. [RR: VI at 176]. Appellant knew he was

in trouble; he had just shot a man twelve times. [RR: VI at 166]. He cleansed the scene

by throwing out the shell casings, disposed of the weapons by breaking them down and

throwing the parts in various dumpsters, and attempted to rid the garage of the odor of

his victim’s decaying corpse. [RR:VI at 221-23, 225-27]. Appellant’s behavior was

clearly to thwart the investigative process and avoid detection.

      The Second Court of Appeals was correct in following the statutory construction

performed in Lumpkin v. State, 129 S.W.3d at 663, concerning the definition of the

word “pending” as used in § 37.09(a)(1) and its judgment should be affirmed.

                                        II.
                               NECESSITY OF REMAND

      Count One of the indictment alleged that the Appellant:

      Then and there knowing that an offense had been committed, namely
      murder, alter, or destroy or conceal a human corpse, with intent to impair
      its verity or availability as evidence in any subsequent investigation or
      official proceeding related to the offense.

      [CR: I at 5].

      The first paragraph of the indictment alleged that the Appellant:

      That the said Defendant in the County of Tarrant and State aforesaid, on
      or about the 30th day of May, 2012 did then and there knowing that an

                                          25
investigation or official proceeding was pending or in progress alter or
destroy or conceal a human corpse with intent to impair its verity or
availability as evidence in said investigation or official proceeding[.]

[CR: I at 5].

The application paragraph of the Court’s charge read as follows:

Now, therefore, if you find and believe the evidence beyond a reasonable
doubt, that the Defendant, George Anthony Thurston, in Tarrant County,
Texas, on or about the 30th day of May, 2012, did then and there knowing
that an offense had been committed, namely murder, alter or destroy or
conceal a human corpse, with intent to impair its verity or availability as
evidence in any subsequent investigation or official proceedings related
to the offense, as charged in Paragraph One of the indictment; or, if you
find from the evidence beyond a reasonable doubt, that the Defendant,
George Anthony Thurston, in Tarrant County, Texas, on or about the 30th
day of May, 2012, did then and there knowing that an investigation or
official proceeding was pending or in progress alter or destroy or conceal
a human corpse with intent to impair its verity or availability as evidence
in any said investigation or official proceeding, as charged in Paragraph
Two of the indictment, then you will find the Defendant guilty of
tampering with or fabricating physical evidence.

[CR: I at 44-45].

The jury returned the following verdict:

We, the jury find the Defendant, George Anthony Thurston, guilty of the
offense of tampering with or fabricating physical evidence as charged in
the Indictment.

[CR: I at 48].

In measuring the sufficiency in this case, the Court of Appeals noted,

“[t]he first paragraph alleged that on or about May 30, 2012, knowing a
murder had been committed, Thurston altered, destroyed, or concealed a

                                    26
      human corpse with intent to impair its verity or availability in a
      subsequent investigation of or official proceeding related to the murder.
      See Tex. Penal Code Ann. § 37.09(d)(1) (West 2011 & Supp.2013).
      Thurston also attacks his conviction under this paragraph, but based on
      our resolution here, we do not reach his arguments related to it. See
      Tex.R.App. P. 47.1.”

Thurston v. State, 2014 WL 3536955 *1 n.3. Thus, in assessing the legal sufficiency

of the evidence the Court of Appeals only determined the issue as to the second

paragraph, the allegation made under Section 37.09(a)(1) of the Texas Penal Code.

The sufficiency of the allegation as to Section 37.09(d)(1) was not determined by the

Court and the State seeks to resolve the issue now.

      Therefore, in the event this Court should reverse the judgment of the Second

Court of Appeals on the issue of statutory construction concerning the definition of

“pending” this Court should remand this case back to that court with instructions to

conduct a sufficiency analysis on the charge stemming from paragraph one of the

indictment emanating from Section 37.09(d)(1) of the Texas Penal Code. See Gonzales

v. State, 2005 WL 2951481 *8 (Tex.App.-Dallas 2005, no. pet.)(not designated for

publication); see Ortiz v. State, 2005 WL 2951505 *8 (Tex.App.-Dallas 2005, pet.

ref’d)(not designated for publication).




                                          27
                         CONCLUSION AND PRAYER

      The State prays that this Honorable Court affirm the decision of the Court of

Appeals, as well as Appellant’s conviction and in the alternative this case should be

remanded to the Court of Appeals with instructions to conduct a sufficiency analysis

concerning paragraph one of the indictment stemming from Section 37.09(a)(1) Texas

Penal Code.

                                       Respectfully submitted,

                                       SHAREN WILSON
                                       Criminal District Attorney
                                       Tarrant County, Texas

                                       DEBRA WINDSOR, Assistant
                                       Criminal District Attorney
                                       Chief, Post-Conviction


                                       /s/ Charles M. Mallin
                                       CHARLES M. MALLIN, Assistant
                                       Criminal District Attorney
                                       401 W. Belknap
                                       Fort Worth, Texas 76196-0201
                                       (817) 884-1687
                                       FAX (817) 884-1672
                                       State Bar No. 12867400
                                       CCAappellatealerts@TarrantCountytx.gov




                                         28
                          CERTIFICATE OF COMPLIANCE

        This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point

for text and 12-point for footnotes. This document also complies with the word-count

limitations of TEX. R. APP. P. 9.4(i) because it contains 6,751 words, excluding any

parts exempted by TEX. R. APP. P. 9.4(i)(1), as computed by Microsoft Office Word,

the computer software used to prepare the document.


                                             /s/ Charles M. Mallin
                                             CHARLES M. MALLIN


                             CERTIFICATE OF SERVICE

        A true copy of the State's merit brief has been e-served to opposing counsel, the

Hon. Leigh W. Davis, leighwdavis@gmail.com, 1901 Central Dr., Ste. 708, Bedford,

Texas     76021,      and     to    Lisa     McMinn,        State     Prosecuting   Attorney,

information@spa.texas.gov, P.O. Box 13046, Austin, Texas 78711, on this, the

17thday of April, 2015.

                                             /s/ Charles M. Mallin
                                             CHARLES M. MALLIN

H:\MALLIN.M31\BRIEFS\PD-1316-14_THURSTON,_George,_ST'S_MERIT_BF.doc




                                               29
