                                                                     PD-1472-14
                                                    COURT OF CRIMINAL APPEALS
                                                                     AUSTIN, TEXAS
                                                   Transmitted 3/6/2015 5:44:41 PM
March 9, 2015                                         Accepted 3/9/2015 9:11:36 AM
                                                                      ABEL ACOSTA
                           No. PD-1472-14                                     CLERK

                IN THE COURT OF CRIMINAL APPEALS

                     OF THE STATE OF TEXAS



                   RICHARD LEE RABB, Appellant

                                  v.

                   THE STATE OF TEXAS, Appellee


                     Appeal from Rockwall County




                            * * * * *

                  STATE’S BRIEF ON THE MERITS

                            * * * * *




                          LISA C. McMINN
                      State Prosecuting Attorney
                        Bar I.D. No.13803300

                            P.O. Box 13046
                         Austin, Texas 78711
                      information@spa.texas.gov
                      512/463-1660 (Telephone)
                          512/463-5724 (Fax)
   NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

Trial Judge: Hon. Bret Hall.

Appellant: Richard Lee Rabb.

Appellee: The State of Texas.

Trial Counsel for Appellant: Ted Sansom, Attorney at Law, P.O. Box 1178,
Rockwall, Texas 75087.

Appellate Counsel for Appellant: Greg Gray, The Gray Law Firm, PLLC, 1012
Ridge Road, Rockwall, Texas 75087.

Trial Counsel for the State: Damita Sangermano, Assistant Criminal District
Attorney, 1111 East Yellowjacket Lane, Suite 201, Rockwall, Texas 75087.

Appellate Counsel for the State: Jeffrey W. Shell, Assistant Criminal District
Attorney, 1111 East Yellowjacket Lane, Suite 201, Rockwall, Texas 75087 and Lisa
C. McMinn, State Prosecuting Attorney, P.O. Box 13046, Capitol Station, Austin,
Texas 78711.
                                        TABLE OF CONTENTS

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         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 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?

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
                                   INDEX OF AUTHORITIES

Bowen v. State, 374 S.W.3d 427 (Tex.Crim. App. 2012) . .. . . . . . . . . . . . . . . . . 3, 4

Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2014). .. . . . . . . . . . . . . . . . . . . . 8

Flanagan v. State, 675 S.W.2d 734 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . . . 9

Gonzales v. State, 532 S.W.2d 343 (Tex. Crim. App. 1976). . . . . . . . . . . . . . . . . . 6

Price v. State, 434 S.W.3d 601 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . . . 5

Rabb v. State, 387 S.W.3d 67 (Tex. App.–Amarillo 2012) . . . . . . . . . . . . . . . . . . . 1

Rabb v. State, 434 S.W.3d 613 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . 2, 3

Rabb v. State, 446 S.W.3d 892 (Tex. App. –Amarillo 2014). . . . . . . . . . . 2, 5, 8, 10

Ex parte Smith, 645 S.W.2d 310 (Tex. Crim. App. 1983). . . . . . . . . . . . . . . . . . . . 8

Stadt v.State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . 7n

Stephens v. State, 806 S.W.2d 812 (Tex. Crim. App. 1990).. . . . . . . . . . . . . . . . . 12

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

Wasylina v. State, 275 S.W.3d 908 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . 5

Statutes

TEX. CODE CRIM. PROC. art. 37.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 7n

TEX. PENAL CODE § 6.02(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7n

TEX. PENAL CODE § 6.03(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7n

TEX. PENAL CODE § 6.03(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7n

TEX. PENAL CODE § 15.01(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

                                                       i
TEX. PENAL CODE § 37.09(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
                                                                                                          4, 6




                                                      ii
                                 No. PD-1472-14
                  IN THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS

RICHARD LEE RABB,                                                         Appellant

v.

THE STATE OF TEXAS,                                                        Appellee

                                    * * * * *

                      STATE’S BRIEF ON THE MERITS

                                    * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      The State Prosecuting Attorney respectfully presents to this Court its brief on

the merits.

              STATEMENT REGARDING ORAL ARGUMENT

      The Court did not grant oral argument.

                         STATEMENT OF THE CASE

       The trial court convicted Appellant of tampering with physical evidence by

destroying a baggie. The court of appeals reversed and ordered an acquittal due to

insufficient evidence that the baggie was actually destroyed. Rabb v. State, 387

S.W.3d 67 (Tex. App.–Amarillo 2012) (Rabb I). On discretionary review, this Court


                                         1
remanded to the court of appeals to determine whether the judgment should be

reformed to reflect a conviction for attempted tampering with evidence. Rabb v.

State, 434 S.W.3d 613 (Tex. Crim. App. 2014) (Rabb II). The court of appeals held

that reformation was improper. Rabb v. State, 446 S.W.3d 892 (Tex. App. –Amarillo,

2014) (Rabb III). This Court granted the State’s petition on February 4, 2015.

                               ISSUES PRESENTED

      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 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?

                            STATEMENT OF FACTS

      A police officer approached Appellant outside a Wal-mart store after his step-

brother was detained for shoplifting, and Appellant consented to a search. Rabb II,

434 S.W.3d at 614-15. The officer saw a baggie in Appellant’s hand and tried to take

it from him. Id. at 615. Appellant put the baggie in his mouth and eventually

swallowed it, despite struggling with the officer and being tasered multiple times. Id.

                                           2
Appellant later admitted that the baggie contained pills. Id. No effort was made to

retrieve the baggie. Id.


                        SUMMARY OF THE ARGUMENT

      Because the legislature has determined that criminal attempt is a lesser-

included offense of the completed offense, a finding of guilt on any completed

offense will always include a finding of guilt of attempt to commit that offense,

regardless of the fact-finder’s actual belief. Alternatively, a verdict of guilt tampering

with evidence always includes a finding of guilt of attempted tampering because the

tampering statute itself requires specific intent; the act that constitutes tampering must

be committed with intent to make the evidence unavailable for an investigation or

proceeding. A jury that finds that the defendant destroyed evidence with intent to

impair its availability in an investigation or proceeding cannot logically believe that

the defendant did not have the specific intent to engage in the conduct or ultimately

commit the offense.

                                     ARGUMENT

      Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012), held that a

conviction reversed on appeal due to insufficient evidence may be reformed to a

lesser-included offense that was proved beyond a reasonable doubt at trial. It


                                            3
reasoned that an outright acquittal under those circumstances would usurp the fact-

finder’s determination of guilt. Id. In Thornton v. State, 425 S.W.3d 289, 299-300

(Tex. Crim. App. 2014), the Court explained that, assuming the evidence is sufficient

to prove a lesser-included offense, reformation to the lesser is proper only if the jury

necessarily found the elements of the lesser in the course of finding guilt of the

charged offense. Reforming the judgment based only on a determination of what the

jury could have found requires speculation on what the jury actually found, which

usurps its exclusive fact-finding function. Id. at 298-99.

      A person commits the offense of tampering with evidence if, “knowing that an

investigation or official proceeding is pending or in progress, he ... alters, destroys,

or conceals any record, document, or thing with intent to impair its verity, legibility,

or availability as evidence in the investigation or official proceeding.” TEX. PENAL

CODE§ 37.09 (a)(1).1 A person commits the offense of criminal attempt if, “with

specific intent to commit an offense, he does an act amounting to more than mere

preparation that tends but fails to effect the commission of the offense intended.”

TEX. PENAL CODE § 15.01(a).



      1
       The indictment in this case charged Appellant with, “knowing that an
investigation was in progress, . . . intentionally or knowingly destroy[ing] a plastic
baggie containing pills with intent to impair its availability as evidence in the
investigation.” CR: 15.
                                           4
      The court of appeals believed that because the trial court convicted Appellant

under an indictment alleging that Appellant intentionally or knowingly destroyed

evidence, the trial judge may not have found that Appellant had the specific intent to

tamper with evidence. Rabb III, 446 S.W.3d at 895-96. Therefore, it refused to

reform the judgment to attempted tampering with evidence. Id. at 896. However,

because the legislature has determined that criminal attempt is a lesser-included

offense of the completed offense, a jury that finds guilt of the completed offense

necessarily finds guilt of attempt.

I. Attempt is always found when a guilty verdict on the completed offense is
rendered.

      According to TEX. CODE CRIM. PROC. art. 37.09 (4), “An offense is a lesser

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

otherwise included offense.” And this Court has previously determined that a jury

that finds guilt of the charged offense necessarily finds guilt of all the lessers:

      An offense is denominated as ‘lesser-included’ precisely because proof
      of the lesser offense is ‘included’ in the offense described in the
      charging instrument. If the State proves the charged offense, it
      necessarily proves all lesser-included offenses. That is why the
      submission of a lesser-included offense does not violate the defendant’s
      constitutional due-process right to notice of the crime of which he is
      accused.

Wasylina v. State, 275 S.W.3d 908, 910 (Tex. Crim. App. 2009); see also Price v.

State, 434 S.W.3d 601, 609 (Tex. Crim. App. 2014) (“A criminal attempt to commit

                                           5
a predicate offense is a lesser-included offense of that predicate offense and is

subsumed within that completed offense upon commission.”).

       Thornton grappled with the question of how criminal attempt–which requires

specific intent–could be necessarily established by proof of a charged offense that

does not require specific intent. The dissent recognized an apparent conflict between

Article 37.09(4), which states that attempt is a lesser-included offense of the

completed offense, and the specific intent requirement in the attempt statute.

Thornton, 425 S.W.3d at 319 (Alcala, J., dissenting). The dissent pointed to

Gonzales v. State, 532 S.W.2d 343 (Tex. Crim. App. 1976), which addressed whether

attempted involuntary manslaughter is an offense. Id. at 321. Gonzales noted that

attempt requires specific intent and the culpable mental state for involuntary

manslaughter is recklessness. Id. at 345. Reasoning that “one cannot intend to

‘involuntarily’ kill another,” the Court concluded that attempted involuntary

manslaughter does not exist. Id.

      Gonzales did not address when an offense is included within another. It

addressed whether criminal attempt can be applied to an offense that can only be

committed recklessly. Appellant does not contend that attempted tampering with

evidence is not an offense.

      Article 37.09 defines lesser-included offenses as a matter of law. Because the


                                         6
legislature has determined that attempt is always established by proof of the

completed offense, a judge or jury that finds the completed offense necessarily also

finds guilt of attempt to commit the offense as a matter of law. This is so even if the

judge or jury did not explicitly make that determination.2

II. An offense that requires an act be committed “with intent to” cause a specific
result is a specific intent offense, regardless of whether a culpable mental state
attaches to the act itself.

      Even if criminal attempt does not apply to all offenses, it applies to all offenses

that require specific intent. A fact-finder who determines that a defendant committed

an act “with intent to” cause a specific result necessarily finds specific intent to

commit the offense.

       Thornton held that in order for the appellate court to reform the conviction to


      2
        This is conceptually similar to a jury that, by finding a defendant guilty of
reckless conduct, necessarily finds him guilty of criminal negligence. TEX. CODE
CRIM. PROC. art. 37.09 (3) provides, “An offense is a lesser included offense if...it
differs from the offense charged only in the respect that a less culpable mental
state suffices to establish its commission.” See also TEX. PENAL CODE §6.02 (e)
(“Proof of a higher degree of culpability than that charged constitutes proof of the
culpability charged.”). Recklessness requires that the defendant be “aware of but
consciously disregard... a risk.” TEX. PENAL CODE §6.03(c). Criminal negligence
requires that the defendant “ought to be aware of the risk” and “the failure to
perceive it constitutes a gross deviation from the standard of care...” TEX. PENAL
CODE §6.03(d). Thus, while a reckless defendant is aware of the risk, the
criminally negligent defendant fails to perceive it. Stadt v.State, 182 S.W.3d 360,
364 (Tex. Crim. App. 2005). While these concepts appear to be mutually
exclusive, failure to perceive the risk is included within awareness of the risk as a
matter of law.
                                           7
attempted tampering, the jury needed to have found that, inter alia, “with the specific

intent to conceal the crack pipe and the specific intent to impair the availability of the

crack pipe as evidence ... the appellant did an act amounting to more than mere

preparation that tended but failed to result in concealment of the crack pipe.”

Thornton, 435 S.W.3d at 300-01 (internal numbering and punctuation omitted).3 The

court of appeals reasoned that, because the indictment in this case alleged intentional

or knowing destruction, the trial judge may not have found intentional destruction

and, thus, did not necessarily find specific intent to tamper with evidence. Rabb III,

446 S.W.3d at 895-96.

          However, while the plain language of the statute does not require a culpable

mental state for the element, “alters, destroys or conceals,” it nevertheless requires

that the defendant act with intent to cause a specific result–to impair its availability

as evidence for an investigation or proceeding. Compare with Ex parte Smith, 645

S.W.2d 310, 311-12 (Tex. Crim. App. 1983) (theft statute explicitly requires property

be appropriated with intent to deprive the owner of the property but does not require

additional mental state for the act of appropriation) and Celis v. State, 416 S.W.3d

419, 427 (Tex. Crim. App. 2014) (false-lawyer statute requires a culpable mental state




      Here, the statutory manner and means alleged is destroy rather than
      3


conceal, and the evidence was a baggie rather than a crack pipe.
                                            8
only for intent to obtain an economic benefit, not for the elements of holding oneself

out as a lawyer or lack of licensing requirements).

      Specific intent is not statutorily defined. But in Flanagan v. State, 675 S.W.2d

734, 740-41 (Tex. Crim. App. 1982), this Court observed, “The element ‘with specific

intent to commit an offense’ has traditionally been interpreted to mean that the actor

must have the intent to bring about the desired result....” Tampering with evidence

includes a specific intent requirement because it requires that altering, destroying, or

concealing be done with intent to achieve the desired result of impairing the verity,

legibility or availability of the evidence in the investigation or proceeding.

      Thornton acknowledged that the tampering statute does not explicitly require

a separate mental state for the act of alteration, destruction or concealment, but held

that the requirement of the specific intent to impair its availability “necessarily has

the effect of requiring that the actor have a concomitant intent to alter, destroy, or

conceal the evidence.” Thornton, 435 S.W.3d at 300, n. 59. It explained, “An actor

could not harbor an intent to impair the availability of a piece of evidence, carry out

that intent by concealment, and yet not have had a ‘conscious objective’ to conceal

the evidence.” Id. 4


      Despite the logical appeal of this statement, it may be more accurate to say,
      4


“An actor could not harbor an intent to impair the availability of a piece of
evidence, carry out that intent by committing an act, and yet not have had a
                                           9
      The court of appeals had difficulty interpreting what it found to be

inconsistencies in footnotes 59 and 60 of the Thornton majority with respect to

whether a jury that finds concealment with intent to impair necessarily finds intent to

conceal. Rabb III, 446 S.W.3d at 895-96. The court of appeals believed that

Thornton’s conclusion hinged on the jury charge, which required a finding of

intentional and knowing concealment. Id. In this case, the court of appeals looked

to the indictment, which alleged intentional or knowing destruction, and determined

that the trial judge may have found only knowing destruction and thus did not

necessarily find intentional destruction. Id.

      In Thornton, although the charge required the jury to find that the defendant

intentionally and knowingly concealed the pipe, this was not the basis for its holding.

Thornton, 425 S.W.3d at 301, n. 60. The Court made clear that it is the intent to




‘conscious objective’ to commit the act.” In other words, a defendant cannot
accidentally engage in the act that results in alteration, concealment or destruction
with intent to render it unavailable as evidence. To find that Appellant destroyed
the baggie with intent to impair its availability, the judge necessarily had to
believe that Appellant intentionally swallowed it. But the State need not prove
that, to make the baggie unavailable, it was Appellant’s conscious objective or
desire that it be destroyed instead of merely concealed. If, hypothetically, the
baggie had contained a large amount of heroin, we could safely assume Appellant
intended that the baggie pass intact through his digestive tract, otherwise, he might
die of an overdose. But if the State had proved that the baggie ruptured and
destroyed the drug, and Appellant miraculously survived, the evidence would not
have been insufficient to prove destruction, even though he intended concealment.
                                          10
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. Id. It explained, “[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.” Id.

      More important, the attempt statute requires specific intent to commit the

offense attempted, not specific intent as to a single element of the offense attempted.

So the focus on intent with regard to the element of “destroys,” is an unnecessary

distraction. Appellant could have had the specific intent to commit tampering with

evidence, even though he was indifferent about whether he wanted the baggie of pills

to be destroyed or only concealed.

      Because the trial court found that Appellant destroyed the baggie with intent

to impair its availability as evidence, it necessarily found that he acted with specific

intent to commit the offense of tampering with evidence. As a result, the court also

found Appellant committed the offense of attempted tampering with evidence.

III. Remedy

      If this Court agrees with the State’s arguments in ground one or two, the proper


                                           11
remedy is to reform the judgment to attempted tampering. If this Court determines

that the trial judge did not necessarily find the lesser-included offense, the proper

remedy is not acquittal but remand for a retrial on the lesser. This remedy preserves

the integrity of the trial judge’s verdict by not foreclosing a determination he may

have made.

       This remedy does not implicate double jeopardy if the trial court did not decide

the issue in the first trial. This situation is distinguishable from Stephens v. State, 806

S.W.2d 812 (Tex. Crim. App. 1990). Stephens held that the defendant could not be

retried for rape when he had been convicted of aggravated rape, but the evidence to

prove the aggravating element was later found insufficient on appeal. The Court

reasoned that aggravated rape and rape are the “same” offense for double jeopardy

purposes, and a defendant cannot be retried for an offense for which he has already

been acquitted. Id. at 815-19.5 The jury that convicted Stephens of aggravated rape

necessarily found him guilty of the lesser-included offense of rape. But if the trial

judge in this case did not necessarily find attempted tampering when it found

Appellant guilty of tampering, there is no jeopardy bar to retrial for attempted

tampering. See Thornton, 425 S.W.3d at 319 (Alcala, J., dissenting) (“ . . . I

conclude that the judgment must either be rendered and reformed to an acquittal or,

      5
       Reformation was apparently not requested or considered during the original
appeal from the aggravated rape conviction.
                                            12
at most, remanded for a trial on criminal attempt in the interests of justice because the

jury would have never passed on the question of whether the defendant acted with the

specific intent to commit an offense.”).

IV. Conclusion

      Reformation is the appropriate remedy in this case because, when the trial

judge found guilt of tampering with evidence, he found all the elements necessary to

prove attempted tampering with evidence. Generally, because criminal attempt is

always a lesser-included offense of the completed offense, a verdict of guilt of the

greater always includes a verdict of guilt of the lesser, even if the fact-finder did not

explicitly make that finding. Specifically, with regard to the offense of tampering,

a finding that Appellant destroyed the baggie with intent to impair its availability as

evidence establishes specific intent to tamper with evidence. Finally, if the Court

determines that when the trial judge convicted appellant of tampering with evidence,

he did not necessarily find specific intent to commit the offense, the proper remedy

is to remand for a new trial on attempted tampering with evidence.




                                           13
                           PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals set

this case for submission, reverse the Court of Appeals’ judgment, and affirm the

conviction.



                                      Respectfully submitted,




                                      /s/ Lisa C. McMinn
                                      LISA C. McMINN
                                      State Prosecuting Attorney
                                      Bar I.D. No.13803300

                                      P.O. Box 13046
                                      Austin, Texas 78711
                                      information@spa.texas.gov
                                      512/463-1660 (Telephone)
                                      512/463-5724 (Fax)




                                      14
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

this document contains 3674 words.




                                              /s/ Lisa C. McMinn
                                              LISA C. McMINN
                                              State Prosecuting Attorney


                         CERTIFICATE OF SERVICE

      The undersigned certifies that on this 6th day of March, 2015, the State’s Brief

on the Merits was served electronically on:


Greg Gray
The Gray Law Firm, PLLC,
1012 Ridge Road,
Rockwall, Texas 75087
ggray@ggraylawfirm.com

Jeffrey Shell
Assistant District Attorney
Rockwall County Courthouse
1111 E. Yellowjacket Lane, Suite 201
Rockwall, TX 75087
jshell@rockwallcountytexas.com


                                              /s/ Lisa C. McMinn
                                              LISA C. McMINN
                                              State Prosecuting Attorney

                                         15
