                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-14-00214-CR


                                   DENNIS MAY, APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 69th District Court
                                      Dallam County, Texas
                       Trial Court No. 4354, Honorable Ron Enns, Presiding

                                         February 5, 2015

                                 MEMORANDUM OPINION

                    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Appellant, Dennis May, appeals the trial court’s judgment by which he was

convicted of tampering with physical evidence and sentenced to four years’

imprisonment.1 On appeal, he challenges the sufficiency of the evidence to support

said conviction. We will affirm.




       1
           See TEX. PENAL CODE ANN. § 37.09(a)(1) (West Supp. 2014).
                              Factual and Procedural History


       Appellant and Louis Kelly were stealing the copper wire from the electric poles

they were inspecting for Rita Blanca Electric Cooperative when Kelly was electrocuted.

Either appellant or a passerby, at the behest of appellant, summoned assistance to the

scene of the electrocution and the resulting fire.


       Dallam-Hartley County EMS arrived on the scene, and so did Curtis Brown of the

City of Dalhart Fire Department. Brown, a certified fire investigator, testified that, in his

experience, a loose wire should be present at the scene of an electrocution. He asked

appellant where the wire was, and appellant reported that he had knocked the wire off

and away from the all-terrain vehicle (ATV) that Kelly had been driving when he was

electrocuted, crumpled the wire up, and threw it over the fence. Deputy Kevin Martin of

the Dallam County Sheriff’s Office arrived at the scene and initially assessed the

situation as an industrial accident.       Appellant told Martin that, after Kelly was

electrocuted, appellant knocked the wire off the ATV, balled it up, and threw it into the

pasture.


       After the ambulance left with Kelly, Brown stayed on the scene to further his

investigation for his fire report. Brown was marking the scene when he located the wire

that appellant reported as having been tossed over the fence. Instead of the single wire

he expected to find as the one with which Kelly came in contact, Brown located multiple

bundles of copper wire.     Upon locating the multiple bundles of copper wire, Brown

alerted Deputy Martin, who had left the scene and was at the hospital where Kelly had

been transported, to the bundles of copper wire and voiced his suspicion that there was


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a possible copper wire theft case. Brown photographed the bundles and marked their

locations with paint and flags.


       The sheriff’s office began its investigation into Brown’s suspicions by sending

another deputy to accompany Brown to the scene to retrieve the copper wire bundles.

When the two arrived at the scene, the paint markings and flags remained but the

copper bundles were gone. The sheriff’s office contacted appellant who admitted to

having taken the copper wire bundles from the scene to Dumas. He met with deputies

and turned over the bundles.


                                   Standard of Review


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d


                                            3
404, 448-50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.


                                        Applicable Law


       The Texas Penal Code defines the offense of tampering with physical evidence

with three elements: (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. See TEX. PENAL CODE ANN. § 37.09(a)(1); Rabb v. State, 434

S.W.3d 613, 616 (Tex. Crim. App. 2014). “A person acts knowingly, or with knowledge,

with respect . . . to circumstances surrounding his conduct when he is aware . . . that

the circumstances exist.” TEX. PENAL CODE ANN. § 6.03(b) (West 2011). In contrast, “[a]

person acts intentionally, or with intent, with respect . . . to a result of his conduct when

it is his conscious objective or desire to . . . cause the result.” See id. § 6.03(a).


                                            Analysis


       Appellant challenges the first and third elements: knowledge that an investigation

or official proceeding regarding Kelly’s electrocution was pending or in progress and

intent to impair the availability of the copper wire as evidence in that investigation or

official proceeding.




                                                4
Knowledge that an Investigation Was Pending or in Progress


      Appellant was charged with knowing that an investigation into the electrocution of

Kelly “was pending or in progress.” Cf. Lumpkin v. State, 129 S.W.3d 659, 663–64

(Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (addressing element when State only

alleged that defendant knew investigation was “in progress”).


      Appellant was with Kelly when Kelly was electrocuted. The record reveals that

appellant threw the copper wire bundles out into the pasture after Kelly was

electrocuted, that fire investigator Brown located and encircled the locations of the

copper wire bundles as they lay in the pasture, and that, later, appellant either remained

at or returned to the scene and took the bundles from the pasture. From the record, it

appears that appellant knew that an investigation into the electrocution death of Kelly

was in progress, seeing as appellant was present at the scene when officers arrived

and that it was appellant who either summoned the authorities or directed a good

Samaritan who stopped at the scene to summon the authorities following the

electrocution. So, when appellant first moved the wire bundles from the immediate

vicinity of the electrocution to the nearby pasture, he knew that an investigation or

official proceeding was, at least, pending. And, most certainly, after the fire and law

enforcement authorities arrived, began their inquiry into the electrocution, located the

copper wire bundles that appellant had thrown out into the field, and circled the bundles’

locations in red paint, appellant knew that an investigation was underway into the

electrocution death of Kelly.       So, when appellant removed the marked and

photographed bundles of wire from the scene altogether, certainly appellant knew that

an investigation or official proceeding was pending or in progress.

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       Regardless of whether the two men had been stealing wire on the job, the record

establishes that there was going to be or that there was an investigation into the

electrocution as soon as Brown, whose job it is to investigate the incident and prepare a

report, arrived at the scene. Further, the record suggests that the sheriff’s office was

also going to prepare a report on the electrocution. That discoveries at the scene

changed the perception of the incident and the nature and course of the investigation

does not change the fact that an official proceeding and investigation into the

electrocution of Kelly had commenced when the fire and law enforcement officials were

notified of the matter. And it was either appellant or a passerby acting at the behest of

appellant who summoned officials.


       Appellant points to testimony from Deputy Martin that, when Martin first arrived at

the location, it was not a crime scene and that appellant never tried to hide anything that

was relevant to the electrocution at the time Martin was at the scene. Appellant also

relies on Martin’s testimony that there was “really not an investigation” when he first

arrived, that, upon officers’ arrival, their first priority was to assist the injured Kelly.

Martin testified that, shortly after the rescue efforts were continued in transport to the

hospital, he thought that the authorities’ goal at the scene of the electrocution was

documentation of an industrial accident. Martin clarified, however, that, even before the

men’s copper wire activities were suspected, “there was an accident investigation.”

Viewed in a light most favorable to the jury’s verdict, the evidence establishes that

appellant knew that an investigation into Kelly’s electrocution was pending or in

progress.




                                             6
Intent to Impair Its Availability as Evidence


       What the two men were doing at the time Kelly was electrocuted was certainly

relevant to the investigation into Kelly’s electrocution.    For instance, investigating

officials needed to determine how Kelly was electrocuted to determine any criminal or

civil liability, manner of death, any ongoing public safety concerns, etc. The record

shows that appellant tossed the several bundles that the men had stored in or on their

ATV into the pasture away from the immediate area surrounding the incident before

officials arrived in response to the 911 call.


       Appellant emphasizes that he did reveal to officials the location of the wire

bundles and, ultimately, turned the bundles that he removed from the scene over to

officials. We note, while it is true that appellant gave information regarding the wire to

officials, that appellant was less than forthcoming even when, at the scene of the

electrocution, he admitted to having tossed the wire over the fence.           When fire

investigator Brown first asked about the wire in relation to Kelly’s electrocution,

appellant responded that he had knocked it off, crumpled it up, and tossed it over the

fence; appellant did not admit to having tossed over the fence the several bundles of

copper wire the men had taken while charged with inspecting electric poles and,

instead, left Brown with the impression that it was the wire responsible for the

electrocution that had been tossed into the pasture. From this, the jury could have

concluded that he did not want officials to find any of the wire that would show that the

two men were taking copper wire at the time Kelly was electrocuted. When called on

later that day to account for the wire that was no longer at the scene, appellant

explained to the officers that he had hoped to hide the wire from his boss. Certainly, his

                                                 7
explanation is relevant to intent, but it is not conclusive. Further, it is clear from his

explanation and from the remainder of the record that he removed the wire bundles in

an effort to avoid discovery during the investigation that he and Kelly were stealing

copper wire. That appellant admitted later to having thrown the copper wire bundles out

into the pasture and, later still, admitted to having taken the bundles from the scene

does not negate the intent that he had at the moment he removed the bundles. See

Lewis v. State, 56 S.W.3d 617, 625 (Tex. App.—Texarkana 2001, no pet.) (observing

that Section 37.09(a)(1) “does not require that the evidence be made useless to the

investigation or proceeding by its concealment; rather, it requires that the defendant

have acted with the intent to impair its usefulness in the investigation or the

proceeding”).


       Tossing the copper wire away from the immediate vicinity and leading officials to

perceive the incident as a simple industrial accident—as they initially did—could serve

to limit appellant’s involvement in the investigation and serve to help him escape any

type of repercussions for having been involved in taking the copper wire. By tossing the

bundles away from the immediate vicinity, appellant was attempting to hide the fact that

the two men had been stealing copper wire from the poles they were inspecting; in other

words, he was attempting to impair the availability of the copper wire bundles as

evidence for consideration in the ensuing investigation into Kelly’s electrocution, that is,

to alter the conclusions drawn during the investigation by eliminating the wire bundles

from consideration by investigating officials.


       Again, what was happening immediately before, during, and after the moment

Kelly was electrocuted would be relevant to the investigation into the matter. Martin

                                             8
testified that the wire bundles were “important” to any investigation. Based on evidence

in the record, the jury could have reasonably concluded that appellant attempted to

remove the copper wire bundles from the scene to impair their availability as evidence

and thereby alter the nature of the investigation that would surely follow and influence

the conclusions yielded by the investigation.


      We overrule appellant’s point of error challenging the sufficiency of the evidence

of two elements of the offense.


                                       Conclusion


      Having overruled appellant’s sole point of error, we affirm the trial court’s

judgment of conviction. See TEX. R. APP. P. 43.2(a).




                                                Mackey K. Hancock
                                                    Justice


Do not publish.




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