           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-0669-13



                         GREGORY THORNTON, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SEVENTH COURT OF APPEALS
                           LUBBOCK COUNTY

       C OCHRAN, J., filed a dissenting opinion in which M EYERS and J OHNSON, JJ.,
joined.

                              DISSENTING O P I N I O N

       I respectfully dissent. Appellant was undeniably guilty of the Class C misdemeanor

of possession of drug paraphernalia. Little did he know that, by clumsily trying to abandon

his crack pipe, he was setting himself up for a third-degree felony conviction for tampering

with evidence, and, because of his priors, a sentence of 45 years’ imprisonment. The Seventh

Court of Appeals found the evidence insufficient to support the element of “concealment,”

but this Court reforms the judgment to reflect the separate offense of “attempted” tampering
                                                            Thornton     Dissenting Opinion Page 2

with evidence and remands for a new punishment hearing. I think that this was a Class C

offense from beginning to end. I disagree that evidence of a person throwing down

contraband during a police pursuit or detention is sufficient, by itself, to constitute either

concealment or attempted concealment for purposes of our tampering-with-evidence statute.

That act of abandoning contraband demonstrates prior possession of it, not its concealment.1

       Our tampering-with-evidence statute, Section 37.09 of the Penal Code, is based on the

corresponding Model Penal Code provision, Section 241.7.2 According to the Tennessee

Supreme Court, some twenty-nine jurisdictions have enacted statutes based on Section

241.7.3 “Most, if not all, jurisdictions that utilize a version of Section 241.7 of the Model




       1
         For example, in State v. Lasu, 768 N.W.2d 447 (Neb. 2009), the defendant walked through
a service station, followed by a police officer. When he rounded a corner, the defendant dropped his
baggie of marijuana into a large bin full of snack foods. The defendant made no effort to cover the
drugs. When the officer walked by, he saw the drugs sitting in the bin and retrieved them. Id. at
449-50. The Nebraska Supreme Court found that this act was mere abandonment because the
defendant did not discard the evidence in a place “where it was unlikely to be discovered.” Instead,
he “placed the evidence where it was quite likely to be discovered, even if he hoped that it might be
less associated with him. . . . All [the defendant] attempted to conceal was the fact of his possession
of the evidence—not the evidence itself.” Id. at 452.
       2
       Section 241.7 of the Model Penal Code provides,
     A person commits a misdemeanor if, believing that an official proceeding or
     investigation is pending or about to be instituted, he:
     (1)     alters, destroys, conceals or removes any record, document or thing with
             purpose to impair its verity or availability in such proceeding or
             investigation; or
     (2)     makes, presents or uses any record, document or thing knowing it to be false and
             with purpose to mislead a public servant who is or may be engaged in such
             proceeding or investigation.
MODEL PENAL CODE § 241.7 (1962).
       3
           State v. Hawkins, 406 S.W.3d 121, 133 (Tenn. 2013).
                                                           Thornton     Dissenting Opinion Page 3

Penal Code have recognized that a defendant does not violate the statute when he or she

merely ‘abandons’ physical evidence of a street crime while running from police or fleeing

the scene of the crime.” 4

       This case comes at a time when tampering or obstruction-of-justice laws are being

“used increasingly against drug offenders who, in some fashion, attempt to destroy or conceal

their drugs when being pursued by police.”5 But most states that have considered the matter

have concluded that when

       a defendant merely drops, throws down, or abandons drugs in the vicinity of
       the defendant and in the presence and view of the police, this conduct does not
       constitute concealment that will support an evidence-tampering or obstruction
       charge, or a conviction that is additional to and separate from the ongoing
       possessory offense.6


       4
           Id.
       5
        John F. Decker, The Varying Parameters of Obstruction of Justice in American Criminal
Law, 65 LA . L.REV . 49, 51–52 (2004).
       6
          In re M.F., 734 N.E.2d 171, 178 (Ill. 2000); see also Hawkins, 406 S.W.3d at 134 (“In the
wake of Boice [v. State, 560 So.2d 1383 (Fla. Dist. Ct. App. 1990)], [State v.] Patton [898 S.W.2d
732, 736 (Tenn. Crim. App. 1994)], and similar decisions, the jurisdictions that have enacted statutes
based on Section 241.7 of the Model Penal Code have developed a ‘unanimous’ consensus that when
a person who is committing a possessory offense drops evidence in the presence of police officers,
and the officers are able to recover the evidence with minimal effort, discarding the evidence
amounts to ‘mere abandonment,’ not tampering.”); People v. Comage, 946 N.E.2d 313, 317 (Ill.
2011) (quoting and relying upon In re M.F. in concluding that defendant did not “conceal” crack
pipe and push rod within the meaning of the obstructing justice statute when he threw the pipe over
a privacy fence while being chased by police; although items were briefly out of officers’ sight, the
officers saw defendant throw them, they landed about ten feet away, and officers were easily able
to walk around the fence and recover them, so defendant did not materially impede the officers’
investigation); Harris v. State, 991 A.2d 1135, 1140 (Del. 2010) (“Whether the defendant briefly
hides evidence on a rooftop or in his mouth, if the police perceive the act of concealment and could
immediately retrieve the evidence, the defendant has failed to ‘suppress’ the evidence”); Vigue v.
State, 987 P.2d 204, 206 (Alaska Ct. App. 1999) (noting that courts addressing issue of whether
                                                           Thornton    Dissenting Opinion Page 4

       As the New Hampshire Supreme Court explained in holding that a juvenile did not

“conceal” a cigarette pack for purposes of the tampering-with-evidence statute when he made

eye contact with the police officer coming toward him,

       The juvenile may have intended to make it less likely that the cigarette pack
       would be associated with him or come to Officer Covie’s attention by ridding
       his hands of it and abandoning it in the crowded hallway. It is important,
       however, not to confuse the juvenile’s intent with his physical actions. [The
       tampering statute] uses the term “conceals” to define the actus reus of the
       offense. In addition to the actus reus, the statute also requires proof of a
       culpable mental state—here, the juvenile's intent to “impair [the] verity or
       availability” of the evidence. That the juvenile may have intended to make it
       more difficult for Officer Covie to detect the contraband does not mean that
       the juvenile concealed the contraband when he abandoned it.7

Courts have also held that the same act of discarding contraband in the presence of police

officers does not suffice to establish the offense of attempted tampering with evidence.8



defendant who drops or tosses contraband away when detained by police “unanimously agree that
a defendant’s act of dropping or tossing away evidence in the sight of the police does not constitute
the actus reus of tampering with physical evidence.”); In re Juvenile 2003-187, 846 A.2d 1207,
1209-10 (N.H. 2004) (juvenile did not “conceal” cigarette pack when he threw it to floor and ran
away through crowded school hallway); Boice v. State, 560 So.2d 1383 (Fla. Dist. Ct. App. 1990);
State v. Patton, 898 S.W.2d 732, 736 (Tenn. Crim. App. 1994).
       7
           In re Juvenile 2003-187, 846 A.2d at 1210.
       8
          Vigue, 987 P.2d at 210-11 (“One could argue that, even if Vigue did not succeed in
suppressing or concealing the cocaine, he nevertheless tried to do so, and so his conviction should
be reduced to attempted evidence-tampering. Again, this would make sense if we interpreted the
terms ‘suppress’ and ‘conceal’ broadly. But, like the courts of our sibling states, we are persuaded
to give a narrow interpretation to the terms ‘suppress’ and ‘conceal.’ We are convinced that a broad
reading of these terms would lead to results that are inexplicably harsh and probably not within the
legislature’s intent”; noting that, under state law, persons under 21 who smoke a cigarette (a
violation punishable by fine only) would be subject to felony convictions and penalties if they “hid
cigarettes in a pocket or purse when police officers approached” and “minor possessory offenses
would often be converted to felonies with little reason.”); Stepovich v. State, 299 P.3d 734, 741-42
(Alaska Ct. App. 2013) (State could not convict defendant of attempted tampering with evidence
                                                            Thornton      Dissenting Opinion Page 5

These courts have expressed three rationales for their holding: (1) the defendant’s act of

discarding contraband in the presence of, and in view of, police is an act of abandonment,

not concealment for purposes of the tampering statute;9 (2) the defendant’s unsuccessful

attempt to rid himself of contraband did not, in fact, impair its availability as evidence;10 and



when his conduct neither impaired the recovery nor the availability of the evidence); Harris, 991
A.2d at 1138 (defendant’s attempt to conceal baggie containing marijuana by putting it in his mouth
did not support conviction for tampering or attempted tampering with evidence; offense of tampering
with evidence “criminalizes neither inchoate tampering nor tampering with items, but, rather,
successful suppression of evidence. . . . It does not apply to an attempted ‘act of concealment,
alteration or destruction.’ Rather, it applies when the defendant ‘suppresses’ the evidence by actual
completed concealment, alteration, or destruction.”); E.I. v. State, 25 So.3d 625, 627-28 (Fla. Dist.
Ct. App. 2009) (juvenile could not be adjudicated for offense of “attempted tampering with
evidence” when he tossed driver’s package of methamphetamine out window in clear sight of
officer; “While E.I. was clearly trying to disassociate himself from the package, there is nothing
about this act under the circumstances presented here that shows that E.I. was trying to alter, destroy,
or conceal the package. Further, while E.I. did remove the package from his hand, he did not remove
it from the scene of the traffic stop. Thus, this act was factually and legally nothing more than
abandonment, and the trial court should have granted E.I.’s motion for judgment of dismissal.”).
       9
          Commonwealth v. Delgado, 679 A.2d 223, 224-25 (Pa. 1996) (defendant’s act of
“discarding contraband in plain view of the pursuing officer” did not constitute tampering with
evidence because he had not destroyed, altered, nor concealed evidence within the meaning of the
statute; defendant’s conduct amounted to “nothing more than an abandonment of the evidence.”);
State v. Sharpless, 715 A.2d 333, 342 (N.J. Super. Ct. App. Div. 1998) (addressing whether
defendant’s “act of discarding criminal contraband upon the approach of a police officer
constitute[d] evidence tampering within the intent of [the New Jersey statute]”; holding that it did
not; it was mere abandonment of the contraband); McKinney v. State, 640 So.2d 1183, 1185 (Fla.
Dist. Ct. App. 1994) (“[A] brief interruption of a police officer’s visual contact with physical
evidence that is on or near one’s body is not sufficient to constitute concealment”).
       10
          Comage, 946 N.E.2d at 319 (noting that those courts that have upheld convictions for
evidence when the defendant swallowed contraband in the hope that it will go unrecovered is not
merely that it was temporarily out of the police officer’s sight, but that the defendant “had, in fact,
materially impeded the officer’s investigation”); Anderson v. State, 123 P.3d 1110, 1119 (Alaska Ct.
App. 2005) (“This is not to say that the act of tossing away evidence can never constitute evidence
tampering. The test appears to be whether the defendant disposed of the evidence in a manner that
destroyed it or that made its recovery substantially more difficult or impossible.” ); Harris, 991 A.2d
at 1138 (no “concealment” when contraband was “immediately retrievable”); compare State v.
                                                             Thornton      Dissenting Opinion Page 6

(3) the legislature surely did not intend that the defendant’s act of discarding drugs–a felony

offense if tampering with evidence–should be punished more severely than his offense of

possessing those same drugs.11 As a Florida court explained, its legislature did not intend

to impose additional felony charges on a person who discards a misdemeanor amount of

contraband while being observed by pursuing police officers:

        If the defendants’ [conduct] in this case constituted tampering [with evidence],
        then a nineteen-year-old who threw a can of beer from his car when stopped
        by a police officer would commit not only the second-degree misdemeanor of
        possession of alcoholic beverages, but also the third-degree felony of
        tampering with the evidence. We do not believe that the legislature intended
        an additional felony under such circumstances.12


Mendez, 814 A.2d 1043, 1050 (N.J. 2002) (upholding tampering conviction of defendant who held
a bag of powder cocaine outside the window of his car and allowed the wind to disperse the powder;
even though he performed this action in the sight of the pursuing police, his conduct essentially
precluded all efforts to recover the evidence; holding that one who possesses and then destroys
cocaine has completed a possessory offense and then taken a new step in completing a separate
offense involving destruction of physical evidence; the act of preventing “an intact retrieval” of the
cocaine completes the evidence-tampering offense); see generally, 67 C.J.S. Obstructing Justice §
1, at 67 (2002) (“The phrase ‘obstructing justice’ as used in connection with offenses arising out of
such conduct means impeding or obstructing those who seek justice in a court[.]”); U.S. Sentencing
Guidelines Manual § 3C1.1 (2010) (under federal sentencing guidelines, a defendant’s attempt to
swallow or throw away a controlled substance is not, by itself, sufficient to warrant an adjustment
for obstruction unless it results in a “material hindrance” to the official investigation).
        11
         Delgado, 679 A.2d at 225 (noting that Pennsylvania law classifies tampering with physical
evidence as a higher degree of crime than possession of cocaine; “Under these circumstances, we
do not believe that the General Assembly intended the simple act of abandoning [contraband] in
plain view of the police to constitute the commission of an additional crime of a greater degree.”).
        12
          Boice v. State, 560 So.2d 1383, 1385 (Fla. Dist. Ct. App. 1990); see also State v. Patton,
898 S.W.2d 732, 736 (Tenn. Crim. App. 1994) (citing Boice and stating “we do not believe that the
legislature intended to inflict greater punishment upon an individual for attempting to discard
evidence [of a crime] than he would receive for commission of the crime. Statutes must not be
construed in a manner which may lead to absurd results. . . . If ‘mere abandonment’ of contraband
falls within the class of [conduct] made criminal by [the evidence-tampering statute], there is a
substantial likelihood of an unreasonable result. Thus, . . . [e]ven if the factual allegations within the
                                                            Thornton     Dissenting Opinion Page 7

       Many of these cases hold that the evidence is insufficient to support a tampering

conviction because there is no evidence that the defendant specifically intended to conceal

evidence with the intent to impair its usefulness at a future trial. Instead, the evidence shows

that the defendant merely intended to distance himself from the evidence. As in “What?

Who me? That’s not my crack pipe.”13 As Justice Yeakel explained in Hollingsworth v.

State,14 the evidence was insufficient in that case to prove that the defendant was carrying

cocaine in his mouth with the specific intent to impair its availability as evidence. Rather,

he was carrying it in mouth “because that is how crack cocaine is commonly carried,

undoubtedly to keep it from public view.”15 When the defendant saw police officers, he spit

it out–an act that exposed the cocaine to the officer’s view.16 In most of these abandonment


indictment are accurate, the defendant, in our view, has not violated the [evidence-tampering]
statute.”).
       13
        See In re Juvenile 2003-187, 846 A.2d 1207, 1209-10 (N.H. 2004); State v. Lasu, 768
N.W.2d 447, 452 (Neb. 2009).
       14
            15 S.W.3d 586, 595 (Tex. App.–Austin 2000, no pet.).
       15
            Id.
       16
           Id. According to the New Jersey Superior Court, in posing the hypothetical of a defendant
who carried his cocaine in his sock, the State’s theory would require a person to “have the cocaine
in plain view” to avoid committing the separate felony crime of tampering with evidence by
concealment as well as the underlying crime of drug possession. Sharpless, 715 A.2d at 343
(quoting Fuqua v. State, 696 A.2d 44, 46 (N.J. Super. Ct. App. Div. 1997) (concluding that “If the
State is correct, all illegal substances, weapons, and even illicit reading material, would be required
to be carried in plain view or else the possessor could be convicted of a third- or fourth-degree crime
or of a disorderly persons offense, in addition to any other substantive offense.”)). Like the Austin
Court of Appeals in Holloway, out-of-state courts have uniformly rejected this position. And what
about the girl who keeps a marijuana joint in the car console? Or the teenager with an unprescribed
pill in her pocket or two beer cans in the cooler? Or the elderly woman who shoplifts a $1.00 candy
bar (a Class C theft) and then tosses it away when a police officer yells, “Stop, thief!”
                                                        Thornton    Dissenting Opinion Page 8

cases, the defendant’s act of abandonment exposes, rather than conceals, the contraband.

       Prosecutions for attempted tampering with the evidence are even more untenable. I

agree with the court of appeals in this case that the claim that appellant’s act of “‘palming’

. . . the pipe to remove it from his pocket constituted attempted concealment” requires total

speculation about whether appellant acted with the specific intent to conceal the pipe or just

abandon it.17 “Without evidence of a specific intent to conceal, Appellant’s merely reaching

into his pocket and removing the pipe is no more attempted concealment than having a drink

is attempted public intoxication.”18 Appellant’s act exposed the crack pipe, so how can a jury

determine, beyond a reasonable doubt, that he specifically intended to conceal the crack pipe

by that act of exposure? This logic escapes me.

       The Tennessee Supreme Court recently explained that a tampering-with-evidence

conviction may not be upheld if the evidence was not permanently altered or destroyed and

its concealment delayed minimally, if at all, the officers’ discovery of it:

       In drug cases, for example, convictions for tampering by concealment have
       been upheld when a defendant swallows drugs and when a defendant flushes
       drugs down a toilet as police approach and the drugs are recovered. One
       defendant’s conviction was upheld when he tossed the drugs out of his moving
       vehicle, kept driving for a half mile, and the drugs were never found. Another
       defendant’s conviction was upheld when he tried to hide his drugs in one
       pocket of a billiards table.
               Conversely, in other drug cases involving alleged concealment, courts
       have found mere abandonment when a defendant hides drugs in his socks or
       in his pocket, tosses drugs onto the roof of a garage while being pursued, drops


       17
            Thornton v. State, 401 S.W.3d 395, 402 (Tex. App.–Amarillo 2013).
       18
            Id. (emphasis added).
                                                          Thornton    Dissenting Opinion Page 9

       drugs off a roof in view of police, or throws drug evidence over a wooden
       privacy fence while officers are in pursuit. Dropping a marijuana cigarette into
       a sewer is mere abandonment, but dropping soluble drugs down a sewer drain
       could make them irretrievable and could support a tampering conviction.
       Hiding drugs in one’s mouth without successfully swallowing them also may
       not constitute tampering.19

       For these reasons, I agree with those courts holding that, with regard to possessory

offenses, the tampering-with-evidence statute applies only to

       (A)        completed crimes in which the evidence is permanently destroyed, altered, or
                 concealed.20 For example, if a defendant swallows the purported contraband,
                 he has destroyed its usefulness as evidence; because the evidence is gone, the
                 defendant cannot be convicted of the drug offense, but he can be convicted of
                 tampering with evidence;21 OR


       19
            State v. Hawkins, 406 S.W.3d 121, 135 (Tenn. 2013) (citations omitted).
       20
          See Vigue v. State, 987 P.2d 204, 210-11 (Alaka Ct. App. 1999). As that court explained,
               If the terms “suppress” and “conceal” are construed broadly, then it is
       possible to speak of Vigue’s conduct as an act of suppression or concealment. By
       ridding his pockets and hands of the cocaine, Vigue probably intended to make it less
       likely that the cocaine would come to Officer Kantor’s attention.
               But it is important not to confuse Vigue’s intent with his physical actions. The
       evidence-tampering statute uses the terms “suppress” and “conceal” to define the
       actus reus of the crime. In addition to this actus reus, the statute also requires proof
       of a culpable mental state—here, Vigue’s intent to “impair [the] availability” of the
       evidence. The fact that Vigue intended to make it harder for Officer Kantor to detect
       the cocaine does not mean that Vigue actually succeeded in “suppressing” or
       “concealing” the cocaine when he tossed or dropped it to the ground. Indeed, under
       the facts of this case, no suppression or concealment occurred: Officer Kantor
       observed Vigue’s action and was alerted to the possibility that something might be
       on the ground at the spot where Vigue had been standing. We agree with the courts
       of Pennsylvania, Florida, Tennessee, and New Jersey that conduct such as Vigue’s
       amounts to nothing more than abandonment of the evidence, not suppression or
       concealment of evidence.
Id.
       21
          See, e.g., Barrow v. State, 241 S.W.3d 919, 923 (Tex. App.–Eastland 2007, pet. ref’d)
(evidence sufficient to support tampering conviction when defendant swallowed what officer had
seen as a white rock-like object that appeared to be crack cocaine during traffic stop); Vaughn v.
                                                         Thornton     Dissenting Opinion Page 10

       (B)     The attempted destruction, alteration, or concealment has materially impeded
               the officer’s investigation. For example, if the defendant tosses bags of
               cocaine down the toilet and flushes it, but the police are able to disconnect the
               plumbing and retrieve the soggy, but identifiable baggies, the defendant’s act
               of concealment was unsuccessful, but it materially impeded the officers.

I respectfully dissent to turning this Class C misdemeanor into a state-jail felony merely

because appellant tried to abandon his crack pipe by exposing it to the officers’ view, not

concealing from their view.

Filed: April 2, 2014
Publish




State, 33 S.W.3d 901, 903-04 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (evidence sufficient
to support tampering conviction when defendant flushed substance that officer believed was cocaine
down the toilet); Stimson v. State, 05-07-01622-CR, 2008 WL 2841512, *2-3 (Tex. App.–Dallas,
July 24, 2008) (not designated for publication) (evidence sufficient to support conviction for
tampering with evidence when defendant swallowed what was thought to be a rock of crack cocaine
at police station); Harris v. State, No. 12-07-00279-CR, 2008 WL 2814879, *2-3 (Tex. App.–Tyler,
July 23, 2008, pet. ref’d) (not designated for publication) (evidence sufficient to support tampering
conviction when defendant, stopped for traffic offense, admitted that he had a “marijuana roach” and
then ate it).
