                                                                              PD-1317-15
                             PD-1317-15                     COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                            Transmitted 10/8/2015 5:20:42 PM
                                                              Accepted 10/9/2015 2:47:13 PM
                   CAUSE NUMBER ________________                              ABEL ACOSTA
                                                                                      CLERK


          IN THE TEXAS COURT OF CRIMINAL APPEALS
                         AUSTIN, TEXAS
__________________________________________________________________

                             MARY ZUNIGA
                               Petitioner

                                   V.

                      THE STATE OF TEXAS
                            Respondent
__________________________________________________________________

From the Thirteenth District Court of Appeals, Cause No. 13-14-0316-CR and
                the 347th District Court for Nueces County,
           Cause No. 13-CR-4404-H, Honorable Missy Medary
________________________________ ________________________________

       PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________

                                                CHRISTOPHER J. GALE
                                                  Texas Bar No. 00793766
                                                  GALE LAW GROUP, PLLC
                                                             P.O. Box 2591
                                               Corpus Christi, Texas 78403
                                                Telephone: (361) 808-4444
                                                Telecopier: (361) 232-4139
                                        Email: Chris@GaleLawGroup.com
                                                    Attorney for Petitioner


                    ORAL ARGUMENT REQUESTED




           October 9, 2015
                   IDENTITY OF INTERESTED PARTIES

      Pursuant to Texas Rule of Appellate Procedure 68.4(a), Petitioner lists the

following persons who have an interest in the appeal:

PETITONER:                                         Mary Zuniga

PETITIONER’S TRIAL COUNSEL                         Christopher J. Gale

PETITIONER’S APPELLATE COUNSEL                     Christopher J. Gale

RESPONDENT                                         The State of Texas

RESPONDANT’S TRIAL COUNSEL                         David Jakubowski
                                                   Assistant District Attorney
                                                   901 Leopard St. Room 206
                                                   Corpus Christi, Texas 78401
                                                   Telephone: (361)-888-0414

RESPONDENT’S APPELLATE COUNSEL                     Douglas Norman
                                                   Assistant District Attorney
                                                   901 Leopard St. Room 206
                                                   Corpus Christi, Texas 78401
                                                   Telephone: (361)-888-0414

PRESIDING DISTRICT JUDGE                           Honorable Missy Medary
                                                   347th District Court
                                                   901 Leopard St., 8th Floor
                                                   Corpus Christi, Texas 78401

NUECES COUNTY DISTRICT ATTORNEY Mark Skurka
                                Assistant District Attorney
                                901 Leopard St. Room 206
                                Corpus Christi, Texas 78401
                                Telephone: (361)-888-0414



                                         ii
                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................... i

TABLE OF CONTENTS ............................................................. iii

INDEX OF AUTHORITIES ........................................................ iv

STATEMENT REGARDING ORAL ARGUMENT .................. 1

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

STATEMENT OF PROCEDURAL HISTORY .......................... 3

ISSUE PRESENTED ................................................................... 3

PETITIONER’S PREVIOUS ARGUMENT ............................... 3

PRAYER ...................................................................................... 9

CERTIFICATE OF SERVICE..................................................... 10

CERTIFICATE OF COMPLIANCE ........................................... 11

APPENDIX ................................................................................ 12




                                                       iii
                                 INDEX OF AUTHORITIES

Cases                                                                      Page

Memorandum Opinion - Barrow v. State, 241 S.W.3d
919, 920-24 (Tex. App. – Eastland 2007, pet. ref’d) ....................7

State v. Majors, 318 S.W.3d 850, 859 (Tenn. 2010) .....................8

State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) .......4

Swabado v. State, 597 S.W.2d 361, 363-364
(Tex.Crim.App. 1980) ...................................................................4

Vaughn v. State, 33 S.W.3d 901 (Tex. App. – Houston [14th
Dist.], nopet.) .................................................................................6, 7

Statutes and other authorities

Tex. Code Crim. Proc. arts. 21.02, 21.11 ....................................... 3. 4

Tex. Code. Crim. Proc. art 27.09 ..................................................5

U.S. CONST. amend. VI ................................................................3

TEX. CONST. art. I, § 10...............................................................3, 4

TEX. PEN. CODE §37.09 ..................................................................4




                                                        iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

                    STATEMENT REGARDING ORAL ARGUMENT

         In the event this petition is granted, Petitioner requests oral argument. Oral

argument would assist to resolve whether, in an indictment, the term “an unknown

substance” is sufficient so as to apprise a defendant of what “thing” was considered

“evidence” alleged to have been altered, destroyed or concealed.

                                   STATEMENT OF THE CASE

         On April 24, 2014, Petitioner was charged by indictment with Tampering

with Physical Evidence. (C.R 5-6)1. The description and nature of the original

charge - in relevant part - against Petitioner stated that she:

         . . . on or about December 19, 2013, . . . 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, [] with
         the intent to impair its verity or availability as evidence in any subsequent
         investigation or official proceeding relating to the offense. . .

(C.R. 5-6) ([] noted in place of blank space originally in indictment).

         Based, inter alia, on the fact that the above-noted indictment did not identify

ANYTHING that was altered, destroyed or concealed, Petitioner filed her Motion

to Quash and Exception to Form of Indictment and a hearing was thereafter

conducted. At the conclusion of said hearing, Respondent agreed (without order

1
  Within this brief, references to the Clerk’s record will be denoted by “C.R.” and those to the Court Reporter’s
record will be denoted as “T.R.”
                                                          1
from the court) to amend said indictment and did so, adding/handwriting in the

phrase “an unknown substance” (in place of the blank space) within the indictment.

(C.R. 5).

      On May 12, 2014, Petitioner filed - based on the mere substitution of “an

unknown substance” in place of the original blank space and nothing describing

any “unlawful” substance and/or any description/explanation of what evidentiary

value such “unknown substance” had - her Defendant’s Amended Motion to Quash

and Exception to Form of Indictment. (C.R. 17-20).

      On June 4, 2014, the Court - after conducting a hearing (during which the

Court questioned not only the sufficient of alleging an “unknown substance” but

also the sufficiency of the allegation of an investigation “in progress” without

more) - granted the motion and entered an Order pertaining to same. (C.R. 29,

T.R. 1-18).

      Respondent thereafter filed their notice of the instant appeal and on July 16,

2015, a Panel of the Thirteenth Court of Appeals issued its Memorandum Opinion,

wherein the Court determined that no description of any “thing” need be alleged in

an information for tampering. Such decision is completely contrary to the purpose

of an indictment, based on vastly irrelevant case law and results in absurd and

unconstitutional charging documents. In short, the Panel determined that saying a

                                         2
person tampered with “something” or “a thing” is sufficient to provide notice to a

defendant.

                STATEMENT OF PROCEDURAL HISTORY

      In an unpublished opinion delivered July 16, 2015, the Thirteenth Court of

Appeals overturned the judgment of the trial court. On August 17, 2015, Petitioner

filed her Motion for En Banc Rehearing, which was denied on August 24, 2015.

      Petitioner now files this, her Petition for Discretionary Review pursuant

Rule 68 of the Texas Rules of Appellate Procedure.

     ISSUE PRESENTED           Whether the addition of the term “an unknown

substance” is sufficient so as to apprise a defendant of what “thing” was considered

“evidence” alleged to have been altered, destroyed or concealed?

                  PETITIONER’S PREVIOUS ARGUMENT

      Simply adding the term “an unknown substance” as the object of a

tampering charge does not provide sufficient notice of what it is a Defendant is

alleged to have “tampered with” anymore than does a blank space in lieu thereof.

      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; State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). In order to provide

same, a charging instrument must be specific enough to convey adequate notice of


                                         3
the nature of the accusations so that the accused may prepare a defense. Moff at

601; see Tex.Code Crim.Proc. arts. 21.02, .11. In particular, an indictment must

allege on its face facts necessary 1) to show that an offense was committed, 2) to

bar a subsequent prosecution for the same offense, and 3) to give the defendant

precise notice of what he or she is being charged with. Swabado v. State, 597

S.W.2d 361, 363-364 (Tex.Crim.App. 1980). Petitioner would assert - as the

District Court found - that these tenants of notice were not met in this case at hand.

      As noted above, the Texas Penal Code section under which Petitioner was

charged with “Tampering With or Fabricating Physical Evidence”, in pertinent

part, states as follows:

      A person commits an offense if, knowing that an investigation          or
      official proceeding is pending or in progress, he 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.

(TEX.PEN.CODE §37.09) (emphasis added). In this particular case, Petitioner was

initially charged with tampering with “nothing” and then later with tampering with

“something” that was unknown (apparently the State cannot even describe if such

unknown substance was even an illegal substance or simply a piece of gum). And

so, how would Petitioner (or those similarly situated) defend against such an

accusation of tampering with a “substance” without any description of whether


                                          4
such was illegal narcotics or otherwise? The truth is that they cannot and even if

they could, an acquittal of tampering with such unknown substance certainly

would not prevent a retrial for something known and later charged. In other words,

if during the first trial it was determined that the “unknown substance” was gum

and hence an acquittal was secured, such acquittal would not prevent a subsequent

trial if it became known and/or alleged that such was actually an illegal substance

of some kind. In any case, the State in bringing a charge must have some kind of

idea as to what item was tampered with and what would make it some evidence of

a crime. Despite bringing such charges, the State in this case has still failed to

provide any such description and based on the indictment, one would be

completely unaware as to whether such item was a piece of paper, illegal narcotics

or a breath mint. If the State believed drugs were involved, then should not the

indictment at the very least state that? Without reiterating the obvious, but in light

of same, no Defendant would have any idea what the State is alleging and as such,

the indictment is insufficient pursuant to the grounds specified in Article 27.09 of

the Texas Code of Criminal Procedure and said indictment did not comply with the

requirements of Article 21.02 of the Texas Code of Criminal Procedure, to wit that

it does not set forth the offense in plain or intelligible language, does not set forth

the necessary elements (either the knowledge of an “in progress” investigation


                                          5
and/or the identity of the item tampered with) and does not adequately inform

Petitioner of the act(s) the State will rely upon to constitute the crime of Tampering

with Physical Evidence.

      In support of Respondent’s assertion that alleging a person has tampered

with “an unknown substance” - without any description of what the substance is

believed to have been at all - is completely without merit and has no authority in

the law. In fact, the only case cited by the Respondent in its original response to

Petitioner’s motion was Vaughn v. State, 33 S.W.3d 901 (Tex. App. – Houston

[14th Dist.], no pet.). The fact that the State selected this case as its sole support for

its “amendment” says volumes. Not only is the case without any writ history and

has never been relied upon by any other Court in any relevant way, such case is

factually different and has no bearing on the issues at hand. In Vaughn, the issue

was not the indictment (alleging an “unknown substance”), as the Defendant

seemed to have failed to object and/or motioned to quash same. While that may be

true of the Defendant in Vaughn, that is not true in this case, where the instant

Defendant is asserting a concern with the charging instrument. In Vaughn, the only

issue was whether testimony concerning crack (a known substance) being

“tampered with” was sufficient to prove the allegation (of an unknown substance).

As such, Vaughn offers little, if any insight to this Court, where it is expected that


                                            6
NO evidence (must less even an allegation of some evidence) of some illicit drug

exist. In addition and further, in Vaughn, there is actually no discussion of what

exactly the wording of the indictment was and yet, Respondent attempts to utilize

such case in this one as support.

      In addition to Vaughn, Respondent also cites to - and the Court of Appeals

adopts in support of its Memorandum Opinion - Barrow v. State, 241 S.W.3d 919,

920-24 (Tex. App. – Eastland 2007, pet. ref’d), simply stating that a tampering

conviction was upheld where the substance appearing to be cocaine was

swallowed but not recovered. While such might be true, whether there was

evidence presented during trial to support a valid indictment is not the question

before this Court. It is whether there was a valid indictment existed to begin with.

Again, the Barrow opinion never once mentions what the indictment alleged,

whether such indictment was ever challenged and/or discusses the application of

the facts to the indictment; and yet, Respondent relies on such case for use in this

appeal. In short, Barrow does not address the issues presented herein and as such,

offers no assistance with same. In fact, in Barrow, the evidence seemed to be

concerning an allegation that the officers saw what they suspected was either

methamphetamine or cocaine and one can assume that such was the allegation in

the indictment - a fact that does not exist in this case.


                                            7
      In addition, Respondent cites to State v. Majors, 318 S.W.3d 850, 859

(Tenn. 2010), for the proposition that in Texas, there is no requirement to describe

what evidence is alleged to have been tampered with. Without addressing the

merits of Majors based on Tennessee law, such reliance is misplaced for two

reasons. First of all, the Texas Supreme Court has determined that upon the filing

of a Motion to Quash, the State is required to provide the substance of the evidence

allegedly tampered with. Swabado v. State, 597 S.W.2d 361, 364 (Tex.Crim.App.

1980) (finding that in prosecution for tampering with a government record,

sufficient notice identifying the alleged criminal acts required the State to identify

the specific names “falsely” entered and supporting the tampering charge).

Secondly, even if the Texas Supreme Court had not spoken concerning the

tampering statute, the indictment in Majors at least tracked the wording of the

tampering statute, alleging “any record, document, or thing”, while in the instant

case, the State/Respondent did not. Accordingly, even if Majors was applicable in

Texas, here the State only alleged an unknown substance and did not even track the

wording of the statute concerning tampering.

      Based on the above, Petitioner requested that this Court overturn the Court

of Appeals opinion and affirm the District Court’s decision granting of the Motion

to Quash in this case. While Petitioner agrees - as the Court of Appeals found - that


                                          8
the State does not need to “specifically identify” with exact precision the “thing”

tampered with, it should be necessary that the State provide at least a description

(i.e. “unknown but expected narcotic”, “rock-like substance presumably crack,”

“baggie containing a white cocaine-like substance”) that constitutes the probable

cause for the arrest. In other words, if there is sufficient probable cause to arrest for

tampering, then there should exist sufficient information to formulate a description

of such in an indictment. To allow the State to allege nothing is simply contrary to

the purpose of an indictment and provides no information from which any person

may defend themselves.

                                      PRAYER

      WHEREFORE PREMISES CONSIDERED, Petitioner, Mary Zuniga,

prays that upon due reconsideration of the arguments and authorities contained

herein, as well as oral argument, if any, that this Honorable Court of Criminal

Appeals overrule the Thirteenth Court of Appeals decision and affirm the District

Court’s granting of Defendant’s Motion to Quash. Petitioner further prays for any

other relief, at law or in equity, specific or general, to which she may show herself

justly entitled, and for which she shall forever pray.

                                         Respectfully submitted,

                                         GALE LAW GROUP, PLLC
                                         P.O. Box 2591
                                         Corpus Christi, Texas 78403
                                         Telephone: (361) 808-4444
                                           9
                                       Telecopier: (361) 232-4139

                                       By: /s/ Christopher J. Gale
                                       Christopher J. Gale
                                       Texas Bar No. 00793766
                                       Email: Chris@GaleLawGroup.com
                                       Attorney for Petitioner

                         CERTIFICATE OF SERVICE

      I hereby certify that on this the 8th day of October 2015, a true and correct

copy of the foregoing was forwarded to the following counsel of record by the

means indicated below:

Doug Norman                           Via E-File Notification
Assistant District Attorney
NUECES COUNTY DISTRICT ATTORNEY’S OFFICE
Texas Bar Number 24078729
901 Leopard, Room 206
Corpus Christi, Texas 78401

State Prosecuting Attorney                    Via First Class Mail
P.O. Box 12405
Austin, Texas 78711


                                              /s/ Christopher J. Gale
                                              Christopher J. Gale




                                         10
                       CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the

undersigned certifies this Petition for Discretionary Review complies with the

type-volume limitations announced in Rule 9.4(i)(2)(D) of the Texas Rules of

Appellate Procedure.

   1. The undersigned certifies that the Petition for Discretionary Review contains

      no more than 2,719 words in proportionately spaced typeface, an amount of

      words within the limits set forth in Rule 9.4(i)(2)(D).

   2. The brief has been prepared in proportionately spaced typeface using

      WordPerfect 12 in 14 pt.Times New Roman. Footnotes are used in this

      Petition for Discretionary Review on one occasion. The text has been

      included and accounted for in the above word count.

   3. The undersigned understands a material misrepresentation in completing this

      certificate, or circumvention of the type-volume limits states in Rule

      9.4(i)(2)(D) of the Texas Rules of Appellate Procedure, may result in the

      Court striking the Petition.


                                       /s/ Christopher J. Gale
                                       Christopher J. Gale




                                         11
                                                APPENDIX:

JUDGEMENT AND OPINION FROM THIRTEENTH
COURT OF APPEALS .............................................................. Tab 1

NOTICE OF DENIAL OF PETITION FOR REHEARING
EN BANC ..................................................................................... Tab 2




                                                        12
TAB NUMBER 1
                         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.
                                                     2
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.


                                            3
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.


                                                4
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.

                                              6
                  THE THIRTEENTH COURT OF APPEALS

                                   13-14-00316-CR


                                  The State of Texas
                                          v.
                                     Mary Zuniga


                                   On appeal from the
                     347th District Court of Nueces County, Texas
                            Trial Cause No. 13-CR-4404-H


                                     JUDGMENT

      THE THIRTEENTH COURT OF APPEALS, having considered this cause on

appeal, concludes that the judgment of the trial court should be reversed and the cause

remanded to the trial court.     The Court orders the judgment of the trial court

REVERSED and REMANDED for further proceedings in accordance with its opinion.

      We further order this decision certified below for observance.

July 16, 2015.
TAB NUMBER 2
                                                                                      FILE COPY

                                                                          NUECES COUNTY COURTHOUSE
CHIEF JUSTICE
                                                                          901 LEOPARD, 10TH FLOOR
  ROGELIO VALDEZ
                                                                          CORPUS CHRISTI, TEXAS 78401
                                                                          361-888-0416 (TEL)
JUSTICES
                                                                          361-888-0794 (FAX)
  NELDA V. RODRIGUEZ
  DORI CONTRERAS GARZA
                                                                          HIDALGO COUNTY
  GINA M. BENAVIDES

                                  Court of Appeals
                                                                          ADMINISTRATION BLDG.
  GREGORY T. PERKES
                                                                          100 E. CANO, 5TH FLOOR
  NORA L. LONGORIA
                                                                          EDINBURG, TEXAS 78539
                                                                          956-318-2405 (TEL)
CLERK
  CECILE FOY GSANGER           Thirteenth District of Texas               956-318-2403 (FAX)

                                                                          www.txcourts.gov/13thcoa

                                        August 24, 2015

      Hon. Christopher J. Gale                      Hon. Douglas K. Norman
      Attorney at Law                               Asst. District Attorney
      P. O. Box 2591                                901 Leopard, Room 206
      Corpus Christi, TX 78403                      Corpus Christi, TX 78401
      * DELIVERED VIA E-MAIL *                      * DELIVERED VIA E-MAIL *

      Hon. Amie Pratt                               Hon. Mark Skurka
      Gale Law Group, PLLC                          District Attorney
      American Bank Plaza                           901 Leopard Street, Room 205
      Corpus Christi, TX 78401                      Corpus Christi, TX 78401
      * DELIVERED VIA E-MAIL *                      * DELIVERED VIA E-MAIL *

      Re:       Cause No. 13-14-00316-CR
      Tr.Ct.No. 13-CR-4404-H
      Style:    The State of Texas v. Mary Zuniga

           Appellee’s motion for rehearing en banc in the above cause was this day
      DENIED by this Court.

                                             Very truly yours,



                                             Cecile Foy Gsanger, Clerk

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