             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

                K ELLER, P.J., filed a concurring opinion.

       In its sufficiency-of-the-evidence analysis, the court of appeals held that courts have

construed the term “conceal” to mean “to hide, to remove from sight or notice, to keep from

discovery or observation.”1 These definitions comport with definitions found in both legal and non-

legal dictionaries.2 Whatever else “conceal” might mean in the context of the tampering with


       1
           Thornton v. State, 401 S.W.3d 395, 398 (Tex. App.–Amarillo 2013, pet. granted).
       2
         See BLACK’S LAW DICTIONARY 261 (5th ed. 1979) (“To hide, secrete, or withhold from the
knowledge of others. To withdraw from observation; to withhold from utterance or declaration; to
cover or keep from sight, or prevent discovery of.”); WEBSTER’S NEW WORLD COLLEGE
DICTIONARY 301 (4th ed. 2000) (“1 to put out of sight; hide, 2 to keep from another’s knowledge;
keep secret”).
                                                            THORNTON CONCURRENCE — 2

evidence statute, it at least means to remove from sight. And removal from a person’s sight occurs,

at least, when a person’s line of sight to the object in question is blocked.

       Under this definition of “conceal,” the evidence was sufficient to show that appellant had the

specific intent to block the officers’ line of sight to the crack pipe with his body when he stealthily

palmed the crack pipe, dropped it, and walked forward to the officers. Although the court of appeals

focused on Officer Roberts’s testimony that the crack pipe never left his sight,3 Officer Roberts also

testified that he could not see the pipe while it was in appellant’s hand and that appellant had

concealed it there. The jury could also have concluded from the following colloquy between Officer

Roberts and defense counsel that appellant intended to block Officer Roberts’s view of the pipe

when he walked toward the officer:

       Q. So him moving away from the pipe concealed it from you?

       A. Yes, sir.

       Q. But not from your vision?

       A. I saw the area to where he was where he dropped it and –

       Q. I’m looking in a dictionary, conceal means the removing from sight or notice.
       Does that sound like an accurate definition of conceal?

       A. Yes, sir.

Moreover, defense counsel elicited Officer Roberts’s opinion that appellant’s intent was to hide the

crack pipe from the officer:

       Q. Okay. And you’re indicating to me and to this jury that you believe Mr.
       Thornton’s intent was to hide that from you.

       A. Yes, sir.


       3
           Thornton, 401 S.W.3d at 81.
                                                             THORNTON CONCURRENCE — 3

        Q. And you’re basing that on the fact that he dropped it in front of you and walked
        away from it?

        A. Uh-huh.

This opinion regarding appellant’s intent qualifies under Rule 701 as one that is “rationally based

on the perception of the witness and helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.”4

        In addition, pursuant to a request from the defense attorney, Officer Roberts conducted a

demonstration of how the crack pipe was dropped. In argument to the jury, one of the prosecutors

stated, without objection, that the demonstration and the officer’s testimony showed that appellant

dropped the crack pipe “on the ground behind his leg.” Defense counsel disputed that interpretation

in his jury argument, but there is no definitive evidence (such as a video or a “let the record reflect”

statement by the trial court) of what exactly the demonstration showed. Absent definitive evidence

that defense counsel’s interpretation was indisputably correct, we must assume that the

demonstration could rationally support a conclusion that appellant did indeed drop the crack pipe

behind his body.

        With these comments, I join the Court’s opinion.



Filed: April 2, 2014
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        4
            See TEX . R. EVID . 701.
