           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD-1472-14



                          RICHARD LEE RABB, Appellant

                                            v.

                               THE STATE OF TEXAS

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

             M EYERS, J., delivered the opinion of the Court in which K ELLER, P.J.,
and K EASLER, H ERVEY, A LCALA, R ICHARDSON, and N EWELL, JJ., joined. Y EARY, J.,
concurred. J OHNSON, J., dissented.

                                     OPINION

       Appellant was charged with the offense of tampering with evidence by destruction.

At trial, the court found Appellant guilty and sentenced him to six years’ imprisonment.

Appellant appealed, asserting that the evidence was legally insufficient to support his

conviction and the court of appeals agreed. Rabb v. State, 387 S.W.3d 67, 73 (Tex. App. –

Amarillo Oct. 31, 2012). The State then filed a petition for discretionary review, which we
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granted in order to consider whether the court of appeals erred in holding that the evidence

was legally insufficient. We agreed with the court of appeals’ decision, but remanded the

case to the court of appeals to have it determine whether Appellant’s conviction should be

reformed to a conviction on the lesser-included offense of attempted tampering with evidence

under Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014). Rabb v. State, 434 S.W.3d

613, 618 (Tex. Crim. App. 2014). The court of appeals found that it could not reform

Appellant’s conviction because he lacked the specific intent to destroy the evidence. Rabb

v. State, 446 S.W.3d 892, 895 (Tex. App. – Amarillo Oct. 8, 2014). The State filed a petition

for discretionary review, which we granted in order to consider whether the court of appeals

erred in its application of Thornton and in choosing not to reform the judgment to the lesser-

included offense of attempted tampering with evidence.

                                      BACKGROUND

       Appellant was stopped by police officers at a Walmart store as part of a robbery

investigation and consented to being searched. While being searched, Appellant pulled a

small plastic baggie out of his pocket, hid it in his hand, and, when noticed by investigators,

put the baggie in his mouth and swallowed it before the investigating officers could see what

it contained. Appellant later told a medic that the baggie contained pills. No one ever made

an attempt to recover the baggie or the pills.1 The State charged Appellant with tampering

with evidence, with the indictment stating that the Appellant “knowing that an investigation

       1
       For a more complete version of the underlying facts of this offense, see Rabb v. State,
434 S.W.3d 613, 614-16.
                                                                                   Rabb - page 3

was in progress, to-wit: theft, intentionally or knowingly destroy[ed] a plastic baggie with

intent to impair its availability as evidence in the investigation.” Appellant was then

convicted in a bench trial and sentenced to six years of confinement.

       On appeal, Appellant argued that the evidence presented was insufficient to prove that

he destroyed the baggie. The court of appeals agreed, reversed the judgment of the trial court,

and entered an acquittal. Rabb v. State, 387 S.W.3d 67, 73 (Tex. App. – Amarillo 2012). The

State appealed to this Court, arguing that it was reasonable for the factfinder to infer that the

baggie was destroyed in Appellant’s digestive tract. We concluded that, because no evidence

was presented that would allow the factfinder to reasonably make this inference, the court

of appeals was correct and the evidence was insufficient to uphold Appellant’s conviction.

Rabb, 434 S.W.3d at 617-18. However, we remanded the case back to the court of appeals

to decide whether the judgment needed to be reformed to reflect a conviction of the lesser-

included offense, attempted tampering, in light of the recent Thornton decision, which

mandates reformation when: 1) in the course of convicting the appellant of the greater

offense, the jury necessarily also found every element necessary to convict the appellant of

the lesser-included offense; and 2) there is sufficient evidence to support a conviction for the

lesser-included offense. Id. at 618.

       On remand, the court of appeals applied the Thornton analysis and held that, because

the second element of attempted tampering–the specific intent to destroy the baggie–was not

necessarily found by the factfinder, the judgment could not be reformed. Rabb v. State, 446
                                                                                 Rabb - page 4

S.W.3d 892, 896 (Tex. App. – Amarillo 2014). The court of appeals reasoned that, because

the indictment alleged knowing or intentional destruction, the factfinder did not necessarily

find that Appellant had intentionally, rather than knowingly, destroyed the baggie. The court

of appeals came to this conclusion after examining Thornton, in which we ordered a

judgment to be reformed to a conviction for attempted tampering because the jury charge

required the jury to have found, beyond a reasonable doubt, that Thornton “intentionally and

knowingly concealed physical evidence.” The Thornton opinion also asserted, in a footnote,

that the requirement of intent to impair the item’s availability as evidence necessarily also

requires that the actor have a “concomitant intent to alter, destroy, or conceal the evidence.”

425 S.W.3d at 300 n.59. The court of appeals in this case discussed both of these rationales

and ultimately held that, because there was no jury charge and the indictment alleged that

Appellant “intentionally or knowingly” destroyed the evidence, the trial court did not

necessarily determine that Appellant acted with any specific intent to destroy the baggie

containing the pills, and no rationale would allow it to conclude otherwise. Rabb, 446 S.W.3d

at 895-96. Therefore, the answer to the first question of the Thornton analysis was “no,” and

the judgment could not be reformed. Id. at 896.

       We granted the State’s petition for discretionary review to consider whether the court

of appeals correctly applied the Thornton analysis. Specifically, we granted review on the

following grounds:

       (1) Because the legislature has determined that criminal attempt is a lesser-
       included offense of the completed offense, does a jury that finds guilt of the
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       completed offense “necessarily find” guilt of attempt?
       (2) When the fact-finder determines that the defendant committed an act “with
       intent to [cause a specific result],” does it necessarily find that he intended to
       commit the act?
       (3) What is the remedy for insufficient evidence of the charged offense when
       the evidence was sufficient to prove a lesser included offense but the record
       does not indicate that the fact-finder affirmatively found the lesser-included
       offense?

Although these questions are framed broadly, we will be addressing each only as it relates

specifically to this case.

                             ARGUMENTS OF THE PARTIES

State’s Argument

       The State first asserts that, as a matter of law, attempt of an offense will always be

found when there is a guilty verdict on the completed offense. It points to Article 37.09(4)

of the Texas Code of Criminal Procedure which states, “An offense is a lesser included

offense if ... it consists of an attempt to commit the offense charged or an otherwise included

offense.” The State also states that this Court has previously determined that a jury that finds

guilt as to a charged offense necessarily finds guilt as to all of the lesser offenses. Wasylina

v. State, 275 S.W.3d 908, 910 (Tex. Crim. App. 2009); Price v. State, 434 S.W.3d 601, 609

(Tex. Crim. App. 2014). The State also considers Gonzales v. State, 532 S.W.2d 343 (Tex.

Crim. App. 1976), in which we determined that, because attempt requires specific intent and

the culpable mental state for involuntary manslaughter is recklessness, attempted involuntary

manslaughter does not exist. The State argues that this case is not instructive because it does

not address whether an offense is included within another, and Appellant is not arguing that
                                                                                    Rabb - page 6

attempted tampering with evidence does not exist.

       The State next argues that, even if attempt cannot be applied to all offenses, it applies

to those that require specific intent. It contends that, when a factfinder convicts a defendant

of an offense that requires an act to be committed with intent to cause a specific result, the

factfinder necessarily finds specific intent to commit the offense. The State cites to the

discussion in Thornton to support this idea and also asserts that the court of appeals erred in

reasoning that the decision in Thornton hinged on the jury charge. Rather, the State says, it

is the intent to achieve the result, and not the intent to engage in the conduct, that

demonstrates the jury’s finding of specific intent to tamper with evidence. The State also

argues that the attempt statute requires specific intent to commit the offense, not the specific

intent as to a single element of the offense and, therefore, Appellant needed only to have the

specific intent to tamper with the evidence, regardless of whether he wanted it destroyed or

concealed.

       Finally, the State believes that, if we should agree with Appellant that the conviction

cannot be reformed to attempted tampering with evidence, the proper remedy is retrial on the

lesser-included offense rather than an acquittal. This remedy, the State argues, does not

implicate double jeopardy because if the trial court did not necessarily find attempted

tampering, then it never decided the issue in the trial and there is no bar.

Appellant’s Argument

       Appellant states that the crux of this case lies in the indictment. Contrary to the State’s
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position, he argues that attempt is not always found when there is a guilty verdict on the

completed offense, and each case must be evaluated with the test set forth in Thornton.

Furthermore, Appellant argues that this Court did not remand this case to the court of appeals

for it to decide if attempted tampering is a lesser-included offense of tampering, but rather

whether the State proved the elements of attempted tampering by destruction and the

judgment should be reformed under the Thornton analysis.

       Appellant contends that the State’s argument that criminal attempt applies to all

offenses requiring specific intent actually results in the elimination of due process. Under the

State’s theory, Appellant argues, he could be convicted of attempted tampering regardless

of what criminal act was used to do so, even though only destruction was pled, which would

mean that there is no longer a requirement to prove each element alleged when considering

the lesser-included offense. Rather, Appellant asserts, because the legislature set out three

different ways tampering can be committed, and the State alleged only one, it needed to

prove that Appellant had the specific intent to destroy the evidence in order for Appellant’s

conviction to be validly reformed.

       Finally, Appellant argues that his due-process rights would be violated if the judgment

were to be reformed. He contends that, if this Court reforms the judgment, it would be the

equivalent to reforming the indictment after the case was tried. Furthermore, Appellant

argues that remanding the case for a retrial would be a double-jeopardy violation because he

has already been tried for the greater offense.
                                                                                  Rabb - page 8

                                        THORNTON

       In Thornton, this Court examined an issue similar to the one before us today. There,

the appellant had been convicted by a jury of tampering with evidence by concealment for

taking a crack pipe out of his pocket and dropping it on the ground in front of two police

officers. 425 S.W.3d at 292. The court of appeals then held that the evidence of concealment

was insufficient to support the conviction because, at all times during the incident, at least

one of the officers knew of the crack pipe’s presence. Id. This Court then granted the State’s

petition for discretionary review and, without considering the issue of the sufficiency of the

evidence, simply remanded the case to the court of appeals to consider reforming the

conviction to attempted tampering with evidence in light of the recent decision in Bowen v.

State, 374 S.W.3d 427 (Tex. Crim. App. 2012). Id. The court of appeals declined to reform

the judgment, and this Court again granted review. Id.

       The Court first addressed whether the State’s failure to request the lesser-included-

offense instruction in the jury charge caused it to lose the right to request reformation of the

conviction. Id. at 295. This Court determined that, where reformation is an appropriate

remedy, “it should be applied regardless of whether either party requested or contested–or

whether the jury was actually given–an instruction on the lesser-included offense at trial.”

Id. at 297.

       Our opinion in Thornton next discussed Bowen v. State and whether it limited

reformation of a conviction only to those cases where the evidence of an “aggravating
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element,” rather than an “essential element,” was found to be insufficient. Id. at 297-98. This

Court reasoned that the type of acquittal that was avoided in Bowen–one based only on

insufficient evidence of an aggravating element–would be no more unjust than an acquittal

in a case in which there was, instead, insufficient evidence of an essential element but the

jury necessarily found every element of the lesser-included offense. Id. at 298-99. Therefore,

we concluded that reformation of a conviction is required where 1) the jury necessarily found

every element needed to convict the appellant of the lesser-included offense and 2) the

evidence that was presented at the appellant’s trial is sufficient to support a conviction on

that lesser-included offense. Id. at 299-300.

       Finally, we turned to the application of this concept to Thornton’s case, first asking

whether the jury necessarily found all of the elements of attempted tampering with evidence

by concealment, which we enumerated as: “1) knowing that an offense had been committed,

and with 2) the specific intent to conceal the crack pipe, and 3) the specific intent to impair

the availability of the crack pipe as evidence in a later investigation or proceeding, the

appellant 4) did an act amounting to more than mere preparation that 5) tended but failed to

result in concealment of the crack pipe.” Id. at 300-01. At this point, in a footnote, we

addressed the second element and how the tampering with evidence by concealment statute

does not seem to require that the actor intend to conceal the evidence. Id. at 301 n.59. If true,

this would mean that a jury that finds guilt to the completed offense would not necessarily

have found guilt on the attempt because they did not necessarily find the specific intent to
                                                                                 Rabb - page 10

conceal. However, we concluded that the phrasing of the statute required that the actor have

a concomitant intent to alter, destroy, or conceal because “an actor could not harbor an intent

to impair the availability of the evidence, carry out that intent by means of concealment, and

yet not have had a ‘conscious objective’ to conceal the evidence.” Id. In addition to this

rationale, we asserted that, because the jury charge instructed the jury to find Thornton guilty

if, in part, they found that he intentionally and knowingly concealed physical evidence, the

jury did agree, by rendering the guilty verdict, that he had intentionally concealed the

evidence. Id. at 301 n.60.

        With these comments, we easily determined that the first four elements of the offense

were found by the jury, and then turned to consider the last element–that Thornton’s actions

had “tended but failed to result in concealment of the crack pipe.” Id. at 301-02. We noted

that under Section 15.01(c) of the Texas Penal Code, the fact that the offense was actually

committed is not a defense to prosecution for attempt of that offense, and therefore, “the

jury’s finding of actual commission subsumes a finding that the appellant’s conduct ‘tend[ed]

but fail[ed]’ to effect the commission of tampering with evidence.” Id. at 302. We held,

therefore, that the jury did necessarily find all of the elements of attempted tampering in this

case.

        Finally, we considered whether the evidence presented at Thornton’s trial was

sufficient to show attempted tampering. We determined that, because evidence was presented

that Thornton took the pipe out of his pocket “stealthily” and he “palmed” the pipe as he
                                                                                  Rabb - page 11

removed it from his pocket, and that it was reasonable for the jury to infer that Thornton

believed the pipe to be concealable, there was sufficient evidence to support a jury finding

that he had the specific intent to conceal the pipe. Id. at 304-07. With these conclusions, we

reversed the court of appeals and remanded the case to the trial to reform the judgment

against Thornton to reflect a conviction of attempted tampering with evidence. Id. at 307.

                                          ANALYSIS

       As discussed, the issue presented in this case is extremely similar to that which

appeared in Thornton, and Thornton, as established precedent, is instructive to our decision

today. We made clear in Thornton that the first step in the analysis when deciding whether

to reform a judgment is determining whether, in the course of convicting the appellant of the

greater offense, the jury necessarily found every element necessary to convict the appellant

for the lesser-included offense. Id. at 300. And as demonstrated in Thornton, irrespective of

T EX. C ODE C RIM. P ROC. art. 37.09(4) stating that criminal attempt is a lesser-included offense

of a completed offense, analysis of this question should be undertaken in every case.

Although we ultimately conclude in this case that the jury did necessarily find the elements

of attempted tampering with evidence, this may not be the case with other offenses that

require only a reckless mental state. See Gonzales v. State, 532 S.W.2d 343 (Tex. Crim. App.

1976). Therefore, as to the State’s first issue, we hold that, although it may be uncommon,

a jury does not “necessarily find” guilt of attempt when it convicts on the completed offense,

and the full analysis of the issue must be undertaken when considering reformation of a
                                                                                 Rabb - page 12

conviction.

       In this case, for the first prong of the Thornton reformation analysis to be met, the

factfinder must necessarily have found that, 1) knowing that an offense had been committed,

and 2) with specific intent to destroy the baggie, and 3) with specific intent to impair the

availability of the baggie as evidence, 4) Appellant did an act amounting to more that mere

preparation that 5) tended but failed to result in destruction of the baggie. In finding

Appellant guilty of completed destruction of evidence, we can easily conclude–much like the

court of appeals–that the trial judge must have found elements one, three, four, and five. See

id. at 301-02.

       In examining the second element of attempted tampering, we again refer to Thornton.

Although Appellant argues that the issue hinges on the wording of the indictment, we

disagree. As noted in Thornton,

       [E]ven if the jury had made no explicit finding vis-à-vis the appellant’s
       specific intent to engage in an act of concealment, by finding that the appellant
       concealed the crack pipe with the “intent to impair its verity, legibility, or
       availability as evidence,” the jury by implication necessarily found that he
       harbored a specific intent to conceal the pipe. . . . To hold otherwise would
       require us to subscribe to the inconsistent notions that the jury 1) believed that
       the appellant intended to impair the crack pipe’s availability as evidence, 2)
       believed that he intended to conceal the crack pipe, and yet 3) harbored some
       implicit doubt about whether he specifically intended to commit the crime of
       tampering with evidence.

Id. at 301 n.60. Because Appellant was tried and convicted in a bench trial, there was no jury

charge in his case–only an indictment, which alleged “intentional or knowing” destruction

of evidence. While these mental states alleged in the indictment appear to have allowed the
                                                                                 Rabb - page 13

judge to find either knowing or intentional destruction, we have already determined that, by

concluding that Appellant harbored the intent to impair the evidence’s use, the judge

necessarily also concluded that Appellant had the specific intent to conceal the baggie. Id.

Therefore, we conclude that the factfinder in this case did necessarily find all of the elements

necessary to convict Appellant of attempted tampering with evidence. We are not, however,

making the broad holding that in every case where the factfinder determines that the

defendant had intent to cause a specific result, it necessarily also found that the defendant

intended to commit the act, as the State invites us to. We are confirming our analysis in

Thornton with respect to specific intent and attempted tampering with evidence and applying

it to the case at hand.

       Because the court of appeals concluded that the trial judge did not necessarily find

every element necessary to convict Appellant of attempted tampering, it never reached the

second prong of the Thornton analysis–whether the evidence was sufficient to support such

a conviction. Rabb, 446 S.W.3d at 896. Therefore, after two previous remands and in the

interest of judicial economy, we will consider it now. Davison v. State, 405 S.W.3d 682, 691-

92 (Tex. Crim. App. 2013) (“[W]hen the proper resolution of the remaining issue is clear,

we will sometimes dispose of the case in the name of judicial economy.”).

       In analyzing this prong, we must determine whether a rational trier of fact could have

found all of the elements of attempted tampering beyond a reasonable doubt, viewing the

evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319,
                                                                                 Rabb - page 14

99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim.

App. 2003). The evidence that was presented to the court included the security video footage

of the officers’ encounter with Appellant (which showed the officers speaking with him, him

putting the baggie in his mouth, and then officers restraining and tasing him), testimony from

the officers that they explained to Appellant that he was being questioned because of his

step-brother’s theft, and the medical report that stated that Appellant had told the medic the

baggie contained pills. We find that this evidence is legally sufficient to support a conviction

of Appellant for attempted tampering with evidence by destruction.

       The testimony of the officers that they informed Appellant of the reason they were

questioning him–an investigation into theft from the store–is sufficient to prove the first

element–that Appellant knew that an offense had been committed. It is of no consequence

that the baggie of pills was not related to the theft investigation, so long as Appellant

intended to impair the baggie’s availability in an investigation he knew was in progress.

There is no requirement that the title of the investigation and evidence that was destroyed or

concealed match. Williams v. State, 270 S.W.3d 140, 144-45 (Tex. Crim. App. 2008). For

the second element, while there may be no direct evidence that Appellant actually intended

to destroy rather than conceal the baggie, the swallowing of the baggie makes intended

destruction a reasonable inference for the factfinder to make. Laster v. State, 275 S.W.3d

512, 523 (Tex. Crim. App. 2009) (“[A]s long as the verdict is supported by a reasonable

inference, it is within the province of the factfinder to choose which inference is most
                                                                                Rabb - page 15

reasonable.”). We previously held that there was insufficient evidence presented at

Appellant’s trial to demonstrate that the baggie had been destroyed. What we are now

examining differs, however, because we are determining only whether it was reasonable for

a factfinder to conclude that Appellant intended to destroy the baggie. As it is common

knowledge that what an individual eats might be destroyed in the stomach, it was reasonable

for the factfinder to infer that destruction was what Appellant intended. It is also reasonable

for the factfinder to have concluded that Appellant intended to impair the baggie’s use as

evidence because he did not swallow it until he was being patted down by officers, which

satisfies the third element. See Thornton, 425 S.W.3d at 306 n.85. As to the fourth and fifth

elements, the swallowing of the baggie was an act that could tend to destroy it and could

result in progress toward the destruction of it, regardless of whether destruction was

achieved. Further, the act of swallowing the baggie would have been the “last proximate act”

one would take if intending to destroy it and thus, that act crossed the line to go beyond mere

preparation. See McCravy v. State, 642 S.W.2d 450, 459-60 (Tex. Crim. App. 1980) (op. On

State’s motion for reh’g). We hold, therefore, that the factfinder could reasonably conclude

that Appellant’s acts amounted to more than “mere preparation,” and “tended but failed” to

destroy the baggie. As discussed, the fact that the destruction of the baggie may have been

completed is not a defense to the prosecution for attempted destruction. T EX. P ENAL C ODE

§ 15.01(c). It is for these reasons that we conclude that the evidence is sufficient for

Appellant to have been convicted of attempted tampering with evidence and that the second
                                                                               Rabb - page 16

prong of the Thornton reformation analysis is met.

                                      CONCLUSION

       For the foregoing reasons, we disagree with the court of appeals that the factfinder in

this case did not necessarily find every element necessary to convict Appellant of attempted

tampering with evidence. We also conclude that the evidence presented at the bench trial was

sufficient to support a conviction of attempted tampering. With the two prongs of the

Thornton reformation analysis satisfied, reformation of the conviction is mandated.

Therefore, we reverse the decision of the court of appeals and order the trial court to reform

Appellant’s judgment to reflect a conviction of attempted tampering with evidence and to

conduct a new punishment hearing based on this reformed conviction.

                                                          Meyers, J.

Delivered: February 10, 2016

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