               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                            NO. PD-0556-18

                             KARL DEAN STAHMANN, Appellant

                                                      v.

                                      THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE THIRTEENTH COURT OF APPEALS
                              COMAL COUNTY

      Y EARY, J., filed a dissenting opinion in which K ELLER , P.J., and K EEL and
S LAUGHTER, JJ., joined.

                                      DISSENTING OPINION

        Appellant was convicted of tampering with physical evidence.1 On direct appeal, he

challenged the legal sufficiency of the evidence to establish, among other things, that he did




        1
            See TEX . PENAL CODE § 37.09(a)(1) (“A person commits an offense if, knowing that an
investigation or official proceeding is pending or in progress, he . . . alters, destroys, or conceals any
. . . thing with intent to impair its verity . . . or availability as evidence in the investigation or official
proceeding[.]”); id. § 37.09(d)(1) (“A person commits an offense if the person . . . knowing that an
offense has been committed, alters, destroys, or conceals any . . . thing with intent to impair its verity
. . . or availability as evidence in any subsequent investigation of or official proceeding related to the
offense[.]”).
                                                                           STAHMANN — 2

anything to alter, destroy, or conceal the thing he was alleged to have tampered with. The

Thirteenth Court of Appeals agreed and, finding that the evidence did support the lesser-

included offense of attempted tampering with physical evidence (and rejecting all of

Appellant’s claims of trial error), it reversed the trial court’s judgment of conviction and

remanded the cause for a new punishment proceeding. Stahmann v. State, 548 S.W.3d 46

(Tex. App.—Corpus Christi 2018). The issue in this case is whether Appellant “concealed”

the alleged object (as opposed to unsuccessfully attempting to conceal it). We should reverse

the court of appeals’ judgment and affirm the trial court’s judgment, thereby reinstating

Appellant’s conviction.

                                     BACKGROUND

       Sometime around 4:30 or 5:00 p.m. on July 1, 2012, Appellant was involved in a

collision while making a left hand turn across the oncoming lane of traffic on Highway 46

in Comal County. The Mazda van he was driving was broadsided by a Chevrolet TrailBlazer

that was traveling about fifty miles per hour, and the front passenger side of the van was

caved in. When two passers-by stopped to assess the situation, they saw Appellant emerge

from the driver’s side of the van, bleeding from a gash over his eye. A passenger in the van

was unconscious. One of the passers-by contacted emergency services on his cell phone.

Both passers-by then witnessed Appellant approach a wire “game fence” along the side of

the road and toss a brown prescription bottle over the fence. One of the passers-by testified

that Appellant “tried to throw it in the brush, but it didn’t make it.” The bottle came to rest
                                                                             STAHMANN — 3

on the grass next to some shrubbery at the bottom of a tree, still visible to the passers-by.

       When a deputy sheriff arrived at the scene, the passers-by directed his attention to the

pill bottle and described for him how they had watched Appellant throw it there.2 Once the

deputy sheriff’s attention was directed to it, he could also see the bottle as it lay on the far


       2
           One of the passers-by testified:

              Q. All right. Now, this fence, was it a normal fence? In other words, just a
       wire fence, or was it a boarded up - - like, a picket fence?

                 A. A wire fence.

                 Q. So you could see easily through the fence?

                 A. Yes, sir.

                 Q. And you could see the bottle in [Appellant’s] hand?

                 A. Yes, sir.

                 Q. You could see the bottle in the air?

                 A. Yes, sir.

                 Q. And you could see it land on the other side?

                 A. Yes, sir.

                 Q. And you never lost sight of it?

                 A. No, sir.

                                                ***

               Q. Okay. And, in fact, when the officer came over, you were able to point it
       out to him, and it was visible to you. And you could point to him and say, That’s
       where the bottle is?

                 A. Yes, sir.
                                                                                STAHMANN — 4

side of the game fence.3 He then reported it to a state trooper who arrived at the scene. After

the trooper unsuccessfully attempted to retrieve the pill bottle through the fence with his

expandable baton, the deputy sheriff entered the property from a nearby gate and retrieved

the bottle. The label indicated that the prescription had been made out to a “James

Castaneda,” and both the label and an imprint on the pills in the bottle identified them as

promethazine, a prescription-only drug. Forensic testing confirmed that the pill bottle

contained 2.12 grams of promethazine.4

       In separate paragraphs of the count of the indictment that alleged tampering with

physical evidence,5 two theories were alleged: that Appellant altered, destroyed, or concealed

a thing, “to-wit, a bottle of pills,” knowing that an investigation was pending or in progress




       3
           The deputy sheriff testified:

                 Q. Was the pill bottle visible when you found it?

                 A. When I was directed there, yes, I could visually see it.

(Emphasis added.) The deputy sheriff nevertheless maintained that the pill bottle had been
“concealed.”
       4
          The deputy sheriff testified that it is an offense to possess the commonly abused drug
promethazine without a prescription. The Department of Public Safety chemist who analyzed the
pills also testified that promethazine is categorized as a dangerous drug, and that to legally possess
it requires a prescription.
       5
         The indictment contained a total of four counts, the first three alleging various theories of
aggravated assault and intoxication assault against the passengers in the TrailBlazer, but Appellant
was ultimately prosecuted only under the fourth count, which alleged the offense of tampering with
physical evidence as described in the text.
                                                                              STAHMANN — 5

(paragraph 1),6 and knowing that an offense had been committed (paragraph 2),7 with intent

to impair its verity or availability as evidence in the investigation. The jury convicted

Appellant without specifying which theory, whether (1) investigation pending or in progress

or (2) offense committed, and the trial court assessed his punishment at ten years’

confinement in the penitentiary, probated for a term of ten years. Then, on direct appeal,

Appellant argued that the evidence was legally insufficient to show that he altered, destroyed,

or concealed the pill bottle.

       The court of appeals agreed. Noting that the State conceded that there was no

evidence to show the pill bottle was destroyed, Stahmann, 548 S.W.3d at 54, the court of

appeals addressed only whether there was evidence that it had been altered or concealed. The

State argued that the pill bottle had been altered because the label was torn and its text was

partially smeared when it was recovered by law enforcement. The court of appeals rejected

this argument for lack of any evidence that the label had not been torn and smeared before

Appellant tossed it over the fence. Id. at 54–55.

       Turning, then, to whether the evidence demonstrated concealment of the pill bottle,

the court of appeals held that it did not because “the evidence established that the pill bottle

remained in full sight of bystanders from the time it was thrown by [Appellant], and of police

from the time they arrived, until the time it was retrieved as evidence.” Id. at 56. “Actual



       6
           See TEX . PENAL CODE § 37.09(a)(1) (investigation pending or in progress).
       7
           See TEX . PENAL CODE § 37.09(d)(1) (offense committed).
                                                                           STAHMANN — 6

concealment requires a showing that the allegedly concealed item was hidden,” the court of

appeals observed, “removed from sight or notice, or kept from discovery or observation.” Id.

at 57 (citing a definition of “conceal” gleaned from the court of appeals opinion in Thornton

v. State, 401 S.W.3d 395, 398 (Tex. App.—Amarillo 2013) reversed on other grounds, 425

S.W.3d 289 (Tex. Crim. App. 2014)). The court of appeals concluded that “[s]uch evidence

is lacking here.” Id. We granted the State’s petition for discretionary review in order to

examine the court of appeals’ conclusions.

                                        ANALYSIS

       This case turns on a question of statutory construction: What is the scope of the

offense as defined by the statute? See Delay v. State, 465 S.W.3d 232, 235 (Tex. Crim. App.

2014) (“[S]ometimes appellate review of legal sufficiency involves simply construing the

reach of the applicable penal provision in order to decide whether the evidence . . . actually

establishes a violation of the law.”). We review questions of statutory construction de novo.

Lang v. State, 561 S.W.3d 174, 180 (Tex. Crim. App. 2018). Here the question boils down

to whether Appellant’s conduct in tossing the prescription pill bottle over the game fence

constituted either “altering” or “concealing” it in contemplation of Section 37.09 of the Penal

Code. Because I would conclude that the evidence supports a finding that Appellant actually

“concealed” the bottle, I will not address whether he may also have “altered” it.

       None of these terms—“alters, destroys, or conceals”—is defined in the statute. When

not particularly defined by statute, words are to be given the meaning found in their
                                                                            STAHMANN — 7

“common usage.” T EX. G OV’T C ODE § 311.011. It is appropriate to consult standard

dictionaries to construe the ordinary meaning of an undefined statutory term, “and jurors may

. . . freely read statutory language to have any meaning which is acceptable in common

parlance.” Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) (quoting Vernon

v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992)).

       Resorting to standard dictionary definitions, various courts of appeals have defined

the word “conceal” to mean “to hide, to remove from sight or notice; to keep from discovery

or observation.” See Thornton v. State, 401 S.W.3d at 398 (citing Rotenberry v. State, 245

S.W.3d 583, 588–89 (Tex. App.—Fort Worth 2007, pet. ref’d), and Hollingsworth v. State,

15 S.W.3d 586, 595 (Tex. App.—Austin 2000, no pet.)); see also Lewis v. State, 56 S.W.3d

617, 625 (Tex. App.—Texarkana 2001, no pet.) (adopting a dictionary definition of

“conceal,” namely, “[t]o hide or keep from observation, discovery, or understanding; keep

secret[.]”). Webster’s New International Dictionary similarly defines “conceal” with a nod

to a purpose not just to “hide” a thing from “sight,” but also to withhold it from “notice”: “1

: to prevent disclosure or recognition of : avoid revelation of : refrain from revealing :

withhold knowledge of : draw attention from : treat so as to be unnoticed . . . 2 : to place out

of sight : withdraw from being observed : shield from vision or notice”. W EBSTER’S T HIRD

N EW INTERNATIONAL D ICTIONARY OF THE E NGLISH L ANGUAGE, at 469 (2002). In her

concurring opinion in Thornton, Presiding Judge Keller remarked that, “[w]hatever else

‘conceal’ might mean in the context of the tampering with evidence statute, it at least means
                                                                            STAHMANN — 8

to remove from sight.” 425 S.W.3d at 307 (Keller, P.J., concurring) (emphasis added). That

“conceal” means at least to “remove from sight” does not mean, of course, that it carries that

meaning exclusively.

       Still, a rational jury could have inferred from Appellant’s conduct that he threw the

pill bottle over the fence with the intent to relocate it to a place where it would not likely be

observed or noticed by accident investigators. Had the passers-by not seen Appellant toss the

pill bottle over the game fence and reported that conduct to the investigating officials, it is

highly unlikely that those officials would have noticed it. Though it may have remained

within sight of anyone who knew to look for it, they certainly would not have recognized its

evidentiary significance. In this sense, a jury could rationally conclude that Appellant acted

upon the pill bottle in such a way as to “conceal” it—at least for a brief period of

time8 —from those who would be conducting the pending or subsequent “investigation” or

“official proceeding” as contemplated by the statute.

       Does the fact that Appellant was observed tossing the pill bottle by non-investigating

passers-by, who never lost sight of it and were able to call it to the attention of investigators

despite Appellant’s conduct, mean that he may only be convicted of an inchoate

offense—attempted tampering with physical evidence? I do not think so, for the reasons that

follow.

       The word “conceal” is a somewhat relative term, taking its meaning to a certain extent

       8
         Nothing in the statutory language requires that the thing concealed remain concealed for
any period of time as a condition of prosecution for the completed offense.
                                                                                  STAHMANN — 9

from context. Grammatically, it operates as a transitive verb,9 and it typically takes both a

direct object (here, as specified by the statute, “any record, document, or thing”)10 and an

indirect object11 —some person from whom that direct object is “concealed.”12 But Section

37.09 does not explicitly identify an indirect object—it fails to specify from whom the direct

object must be hidden from sight or notice. This lack of specificity creates a latent ambiguity

which must be addressed in order to resolve this case: From whom must the “thing” in the

statute be concealed? I believe there are three plausible answers.

        First, the statute may contemplate that the actor must actually conceal the thing from

everyone before he may be prosecuted for tampering under a concealment theory.13 By this

understanding of the statute, Appellant would be guilty only of the attempt because he failed




       9
         See William Strunk Jr. & E. B. White, The Elements of Style 95 (4th ed. 2000) (“transitive
verb A verb that requires a direct object to complete its meaning: They washed their new car. An
intransitive verb does not require an object to complete its meaning: The audience laughed. Many
verbs can be both: The wind blew furiously. My car blew a gasket.”).
       10
         Id. at 91 (“direct object A noun or pronoun that receives the action of a transitive verb.
Pearson publishes books.”).
       11
         Id. (“indirect object A noun or pronoun that indicates to whom or for whom, to what or
for what the action of a transitive verb is performed. I asked her a question. Ed gave the door a
kick.”).
       12
          Both “alter” and “destroy” are also transitive verbs, but neither so readily takes an indirect
object as does “conceal.” One typically “alters” or “destroys” a thing, but one does not typically alter
or destroy that thing for or from someone or something.
       13
          In all three of these plausible scenarios, I of course assume the actor harbors the requisite
culpable mental state—knowledge that an investigation or official proceeding is underway or
pending, or that an offense has been committed, and a specific intent to impair the verity or
availability of the thing that is acted upon as evidence in the investigation or official proceeding.
                                                                                 STAHMANN — 10

to remove the pill bottle from the sight or notice of the passers-by. The court of appeals

seems to have applied this construction, or something like it, when it held the evidence

insufficient to establish concealment because the pill bottle “remained in full sight of

bystanders from the time it was thrown by [Appellant], and of police from the time they

arrived, until the time it was retrieved as evidence.”14 Stahmann, 548 S.W.3d at 56. In other

words, because Appellant did not conceal the pill bottle from everyone, he cannot have

committed a completed offense.

        Second, the statute may operate more broadly, contemplating that the actor commits

an offense so long as he manages to conceal the thing from someone—anyone. Under this

construction, Appellant would be guilty of actual concealment because he removed the pill

bottle from the notice of someone/anyone—that is, everybody but the two passers-by. Only

because the passers-by alerted the investigating officers to the place where Appellant had

tossed it did they (or anybody else) notice it at all.

        As a third alternative, we could deduce from the context of the statute that the indirect

object of the concealment is a subset of the “anyone/someone” concept: the investigators

themselves—those whose pending or in-progress investigations or official proceedings

would be thwarted by the concealment. By this understanding, too, Appellant would be guilty

of the completed offense, because he acted in such a way as to successfully conceal the pill


        14
           The record does not support the court of appeals’ observation that the pill bottle was “in
full sight” of the investigating officers “from the time they arrived[.]” It is more accurate to say that
at some point after their arrival it came within their sight, and thereafter remained within their
sight—but only once the passers-by called it to their attention.
                                                                                STAHMANN — 11

bottle from the notice of the accident scene investigators, if nobody else. But for the passers-

by, it is highly unlikely that the pill bottle would ever have come to their attention.15

       Of these three possible constructions of the statute, I believe the first one—requiring

concealment from everyone—does the least to accomplish the evident “object sought to be

obtained” by the statute—to preserve physical evidence by deterring those who would

purposefully compromise the integrity of an official investigation or proceeding. T EX. G OV’T

C ODE § 311.023(1). If an actor had to succeed in his objective to hide material evidence from

every possible witness before his conduct could qualify as “concealment” under the statute,

then, as a practical matter, almost no actor would ever be found guilty of actually tampering

with evidence under a concealment theory. Any time the evidence might ultimately be

discovered, the courts would declare that the most the defendant could have committed was

attempted concealment because, at some point, the evidence would have been found.

       By the other two interpretations of the statute—that an actor is guilty so long as he

conceals from (1) any other person, or (2) at least from official investigators—I have already

concluded that the evidence is sufficient to show that Appellant is guilty of actual, not merely

attempted, tampering with physical evidence. Therefore, I need not decide which of those



       15
          The Court seems to agree, readily conceding that the officers here would not likely have
discovered the pill bottle unless the passers-by called both its location and its significance to their
attention. Majority Opinion at 12. The Court declares, “What the witnesses saw and told law
enforcement informs whether the physical evidence was concealed from law enforcement.” Id. I
suppose the Court means to suggest that whether the pill bottle was successfully concealed from law
enforcement necessarily takes into account whether it was also successfully concealed from others
who might be able to point it out to law enforcement.
                                                                         STAHMANN — 12

two alternative constructions is correct for purposes of resolving the legal sufficiency issue

here. Because a rational jury could have found Appellant removed the pill bottle—even

temporarily—from the notice of the investigators who would conduct the pending or

subsequent investigation, if nobody else, the evidence is sufficient to prove he “concealed”

it.

                                      CONCLUSION

       I would hold that the evidence was legally sufficient to support the jury’s finding that

Appellant committed the offense of tampering with physical evidence in that he concealed

a thing with intent to impair its availability as evidence in an investigation or official

proceeding. Accordingly, I would reverse the judgment of the court of appeals and reinstate

the judgment of the trial court. Because the Court does not, I respectfully dissent.




FILED:               April 22, 2020
PUBLISH
