Opinion filed January 30, 2014




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-12-00011-CR
                                     __________

WILLIAM ALEXANDER GLASS A/K/A BILL GLASS, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 39th District Court
                            Haskell County, Texas
                          Trial Court Cause No. 6417


                      MEMORANDUM OPINION
      William Alexander Glass a/k/a Bill Glass appeals his conviction of
fabricating physical evidence. See TEX. PENAL CODE ANN. § 37.09(a)(2) (West
Supp. 2013). Pursuant to a plea bargain, the trial court assessed Appellant’s
punishment at confinement in the Institutional Division of the Texas Department of
Criminal Justice for a term of seven years but then suspended the sentence and
placed Appellant on community supervision for a term of seven years. The court
also required Appellant to pay $319 in court costs and a fine of $2,000. Although
this is a plea bargain case, Appellant is appealing matters that were raised by
written motion filed and ruled on before trial. See TEX. R. APP. P. 25.2 (a)(2). We
affirm.
                                 I. Issues on Appeal
      In two issues on appeal, Appellant contends (1) that the trial court erred
when it failed to grant Appellant’s motion to quash and dismiss his indictment and
(2) that the facts alleged in the indictment were insufficient to establish the offense
of fabricating physical evidence.
                         II. Proceedings in the Trial Court
      Appellant was charged by indictment with one count of fabricating physical
evidence; one count of possession of a controlled substance—methamphetamine,
less than one gram; and one count of unlawful arrest. The indictment alleged that
Appellant was acting under the color of his employment as a public servant, and in
the process of searching a detained vehicle, when he planted a controlled
substance—methamphetamine that had previously been seized by law enforcement
officials in another criminal investigation—in the vehicle. The indictment further
alleged that Appellant then intentionally subjected the owner of that vehicle—
Celestino Orona—to an unlawful arrest based on the evidence he planted.
      Prior to his plea agreement, Appellant filed a motion to quash and dismiss
his indictment with regard to his charge of fabricating physical evidence.
Appellant’s motion alleged that the indictment (1) was vague and ambiguous, (2)
did not set out the charged offense in plain and intelligible words, (3) did not
clearly set forth a violation of Section 37.09 of the Penal Code, and (4) did not set
forth sufficient facts with which he could prepare his defense.
      At a pretrial hearing, Appellant attempted to call witnesses in support of his
motion to quash. The State objected and argued that the court lacked the authority
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to inquire into whether the indictment was based on sufficient proof. The trial
court sustained the State’s objection and denied Appellant’s motion to quash.
      Pursuant to a plea agreement, Appellant then pleaded “No Contest” to his
charge of fabricating physical evidence, and the State waived Appellant’s
remaining charges. The State also provided the trial court with a recommended
sentence of seven years’ imprisonment, probated for a term of seven years, and a
$2,000 fine. The trial court agreed to the plea agreement, and Appellant received
the recommended sentence.
                               III. Standard of Review
      The sufficiency of an indictment is a question of law. State v. Moff, 154
S.W.3d 599, 601 (Tex. Crim. App. 2004). When the resolution of a question of
law does not depend on an evaluation of the credibility and demeanor of a witness,
the trial court’s ruling is subject to de novo review. Id.
                                     IV. Analysis
      In this case, Appellant argues that his indictment alleges that he found
methamphetamine that was “false.” Appellant contends that, because the
methamphetamine itself was not “false,” the allegations in the indictment were
insufficient to plead the offense of fabricating physical evidence and were
incapable of proof. Therefore, Appellant contends that the trial court should have
dismissed his indictment. Because both of Appellant’s issues relate to the content
of his indictment, we will address both issues together.
      An accused in a criminal case is guaranteed the right to demand the nature
and cause of the action against him. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.
Crim. App. 1988). A charging instrument that tracks the language of a criminal
statute generally possesses sufficient specificity to provide a defendant with notice
of a charged offense. State v. Edmond, 933 S.W.2d 120, 128 (Tex. Crim. App.
1996). A motion to quash an indictment should be granted only when the language
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regarding the accused’s conduct is so vague or indefinite that it fails to give the
accused adequate notice of the acts he allegedly committed. DeVaughn, 749
S.W.2d at 67.
      In relevant part, the indictment at issue in this case alleged that on or about
December 27, 2009, Appellant:
      [D]id then and there, knowing that an investigation was in progress,
      to-wit: the search of a motor vehicle, intentionally or knowingly
      make, present, and use evidence, to-wit: by planting and purporting to
      have found a controlled substance, with knowledge of its falsity, to
      wit: the methamphetamine had previously been seized as evidence in
      another criminal investigation, and with the intent to affect the course
      or outcome of the investigation.

This language tracks the statutory language of Section 37.09(a)(2) of the Penal
Code, which states that a person commits the offense of tampering with or
fabricating physical evidence if, knowing that an investigation or official
proceeding is pending or in progress, he makes, presents, or uses any record,
document, or thing with knowledge of its falsity and with intent to affect the course
or outcome of the investigation or official proceeding. See PENAL § 37.09(a)(2).
      Given that Appellant’s indictment tracks the applicable statutory language,
we find that the trial court did not err when it denied Appellant’s motion to quash.
See Martinez v. State, 879 S.W.2d 54, 57 (Tex. Crim. App. 1994) (holding that a
charging instrument that tracks the language of the statute defining the offense will
generally be sufficient to charge an offense). Contrary to Appellant’s argument,
the phrase “with knowledge of its falsity” in his indictment refers to the falsity of
the planted evidence, not the falsity of the methamphetamine itself.             The
indictment was not vague and clearly set out the criminal offense with which
Appellant was charged, as well as the details of that offense. Appellant’s first and
second issues are overruled.


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                              V. This Court’s Ruling
      The judgment of the trial court is affirmed.




                                                       JOHN M. BAILEY
                                                       JUSTICE


January 30, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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