                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-11-00078-CR


                         RICHARD LEE RABB, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 382nd District Court
                                  Rockwall County, Texas
                 Trial Court No. 2-10-246, Honorable Brett Hall, Presiding

                                    October 8, 2014

                             OPINION ON REMAND
                Before QUINN, C.J. and CAMPBELL and HANCOCK, JJ.


      Appellant Richard Lee Rabb appealed his conviction by bench trial of the third

degree felony offense of tampering with physical evidence. We agreed with Rabb there

was insufficient evidence to show that, knowing an investigation was in progress, he

destroyed an item. We reversed his conviction, and entered a judgment of acquittal.

Rabb v. State, 387 S.W.3d 67, 69 (Tex. App.—Amarillo 2012). The Court of Criminal

Appeals also agreed the evidence supporting Rabb’s conviction of tampering by

destruction was insufficient, but remanded the case for our determination whether the
judgment must be reformed to convict Rabb of the lesser-included offense of an attempt

to tamper with evidence. Rabb v. State, 434 S.W.3d 613 (Tex. Crim. App. 2014). The

Court of Criminal Appeals established the standard for such a determination in its

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


        Quoting Thornton, 425 S.W.3d at 299-300, the Court of Criminal Appeals set out

the two questions we must consider:


        [A]fter a court of appeals has found the evidence insufficient to support an
        appellant's conviction for a greater-inclusive offense, in deciding whether to
        reform the judgment to reflect a conviction for a lesser-included offense, that
        court must answer two questions: 1) in the course of convicting the appellant of
        the greater offense, must the jury have necessarily found every element
        necessary to convict the appellant for the lesser-included offense; and 2)
        conducting an evidentiary sufficiency analysis as though the appellant had been
        convicted of the lesser-included offense at trial, is there sufficient evidence to
        support a conviction for that offense? If the answer to either of these questions is
        no, the court of appeals is not authorized to reform the judgment. But if the
        answers to both are yes, the court is authorized-indeed required-to avoid the
        "unjust" result of an outright acquittal by reforming the judgment to reflect a
        conviction for the lesser-included offense.

        Rabb, 434 S.W.3d at 620.


        After remand, we offered the parties the opportunity for briefing on the subject of

reformation.    Both parties responded.     The State urges that when the analysis in

Thornton is applied to the record in this case, reformation of the judgment to convict

Rabb of the lesser-included offense of attempted tampering with evidence is required.

We reach the contrary conclusion after applying the Thornton analysis, and find

reformation to a conviction of attempted tampering with evidence is not permitted in this

case.




                                             2
       Rabb was charged by an indictment alleging that “knowing that an investigation

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

containing pills with intent to impair its availability as evidence in the investigation.”

See TEX. PENAL CODE ANN. § 37.09(a)(1) (West 2011). The evidence showed that Rabb

and his stepbrother were in a Wal-Mart store in Rockwall.            His stepbrother was

detained, suspected of shoplifting. As Rabb was about to leave the store, he also was

detained, and was asked if he possessed any of the store’s merchandise. He denied

having any merchandise, and consented to a search of his person. During the search,

Rabb removed a small plastic baggie from his back pocket and, when an officer

attempted to take it, Rabb put the baggie into his mouth and swallowed it. Rabb later

told a paramedic the baggie contained pills that were not prescribed to him. Neither the

baggie nor its contents were recovered. Rabb, 434 S.W.3d at 614-15.


       The first question that confronts us is whether, in the course of convicting Rabb

of tampering with evidence by destruction the trial court necessarily found every

element necessary to convict him of attempted tampering. Under the criminal attempt

statute, a person “commits an offense 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 ANN. § 15.01(a) (West 2012).

Thornton also involved a conviction for tampering with evidence, also reversed on direct

appeal. 425 S.W.3d at 291-92. In its recent opinion, the Court of Criminal Appeals

conducted the analysis to determine whether the judgment there should be reformed to

convict Thornton of attempted tampering with evidence. Id. at 300. Synthesizing the

findings of the jury that convicted Thornton of the greater offense of tampering with


                                             3
evidence by concealing with the elements of a lesser-included offense of attempted

tampering, to address the first question of the reformation analysis, the court stated the

question “can be answered in the affirmative only if the jury, by its verdict, must

necessarily have found that, 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.


       The court determined that the jury must necessarily have found the five elements

to have been proven when it found Thornton guilty of actual concealment of the crack

pipe. 425 S.W.3d at 302. En route to that determination, the court held that by its

verdict, the jury “explicitly found” the first three elements, those relating to Thornton’s

culpable mental state, were proven. Id. at 301. That is, the court held, by its verdict

finding Thornton guilty of tampering with evidence by concealment, the jury necessarily

determined that Thornton acted with knowledge that an offense had been committed,

and with the specific intents to conceal the crack pipe and impair its availability as

evidence in a later investigation.


       The present case differs from Thornton in some respects. As noted, Rabb’s guilt

was determined by the trial court in a bench trial rather than by a jury. And he was

convicted of tampering under § 37.09(a), dealing with tampering when an investigation

or official proceeding is in progress, while Thornton was convicted under § 37.09(d),




                                             4
which deals with tampering after the commission of an offense. See TEX. PENAL CODE

ANN. § 37.09(a), (d) (West 2011).1


       Following the pattern set out in Thornton, and similarly synthesizing the elements

the trial court must have found proven beyond reasonable doubt with those of the

lesser-included attempt, to answer the first reformation question affirmatively we must

conclude that the trial court found Rabb: (1) knowing that an investigation was in

progress, and with (2) the specific intent to destroy the plastic baggie containing pills,

and (3) the specific intent to impair the availability of the plastic baggie containing pills

as evidence in the investigation, (4) did an act amounting to more than mere

preparation that (5) tended but failed to result in the destruction of the plastic baggie

containing pills.


       It is clear the trial court must have determined beyond reasonable doubt that

Rabb knew an investigation was in progress when he swallowed the baggie containing

the pills. See TEX. PENAL CODE ANN. § 37.09(a). The evidence was consistent with the

indictment, showing that Rabb knew he was detained for an inquiry into his possible

theft of merchandise. For purposes of the sufficiency of evidence to show his guilt of

tampering, it would not have mattered that the pills might not have been evidence in the

       1
          Too, the nature of the evidentiary insufficiency may be seen as differing from
that in Thornton. Rabb’s conviction was reversed because the State plead one
statutory alternative for the conduct element of tampering but proved another statutory
alternative. See Cada v. State, 334 S.W.3d 766, 768 (Tex. Crim. App. 2011) (variance
between pleading of one statutory element and proof of a different statutory element is
material); Rabb, 434 S.W.3d at 617-18 (citing Cada, 334 S.W.3d at 776). The
evidentiary insufficiency in Thornton did not involve such a “variance” but a more typical
failure of proof. See Thornton, 425 S.W.3d at 292. We will not examine the question,
but will assume that the first-question analysis required of us on remand in this case is
not affected by this distinction in the nature of the evidentiary insufficiency.


                                             5
theft investigation, so long as Rabb intended to impair the availability of the pills in that

investigation. See Williams v. State, 270 S.W.3d 140, 145 (Tex. Crim. App. 2008) (“the

title of the investigation and the evidence concealed need not match as long as the

accused intends to impair the availability of the evidence in an investigation he knows is

in progress”). In order to find Rabb guilty of tampering, the trial court also must have

determined beyond reasonable doubt that he swallowed the baggie with the intent to

impair its availability in the theft investigation. TEX. PENAL CODE ANN. § 37.09(a)(1). The

first and third elements are satisfied.


       The second element is more problematic. That element requires us to conclude

that the trial court, by finding Rabb guilty of tampering by destruction, necessarily found

beyond reasonable doubt that he acted with the specific intent to destroy the baggie

containing pills.


       In footnotes 59 and 60 to its opinion in Thornton, 425 S.W.3d at 300-01, the

Court of Criminal Appeals elaborated on its conclusion that the second element was

met in that case. It gave two rationales to explain its conclusion. In footnote 60, the

court pointed to the wording of the trial court’s charge, which, in its application

paragraph, required the jury to find beyond reasonable doubt that Thornton

“intentionally and knowingly conceal[ed] physical evidence, to wit: glass pipe . . . .” The

court reasoned that by its general verdict, the jury “signified its assent to the proposition”

the State had carried its burden to prove beyond a reasonable doubt that, inter alia,

Thornton intentionally concealed physical evidence. 425 S.W.3d at 301 n.60.




                                              6
       In footnote 59, the court outlined a rationale based on the elements of tampering

under § 37.09(d)(1).      The court held that “the inclusion [in that subsection] of the

adverbial phrase ‘with the intent to impair its verity, legibility, or availability as evidence

in any subsequent investigation’ necessarily has the effect of requiring that the actor

have a concomitant intent to alter, destroy, or conceal the evidence.” 425 S.W.3d at

300 n.59. The court reiterated the rationale in footnote 60, responding to Judge Alcala’s

dissenting opinion and stating its holding that a jury finding Thornton acted with the

specific intent to conceal the crack pipe was “subsumed by” the jury’s finding he acted

with the specific intent to impair the crack pipe’s verity, legibility, or availability as

evidence. 425 S.W.3d at 301 n.60.


       In our present case, however, there was, of course, no jury charge. And the

indictment alleged Rabb “intentionally or knowingly” destroyed the baggie containing

pills. We see no basis, therefore, for a conclusion the trial court necessarily determined

that Rabb acted with the specific intent to destroy the baggie, or the pills. This places

Rabb’s case within the example mentioned in footnote 59 in Thornton, one in which the

actor could have been convicted of tampering with evidence on the basis of a finding he

harbored a culpable mental state less than intent with respect to the conduct element, 2

with the result that a reviewing court is unable to determine that the factfinder

necessarily found the actor harbored a “specific intent” to destroy the evidence. 425

S.W.3d at 300 n.59.




       2
           Concealment in Thornton; destruction in this case.


                                              7
       And, as we read the Thornton opinion,3 this distinction also renders inapplicable

the second rationale the court outlined, holding that, under the language of the

tampering statute, a finding of an intention to impair the availability of evidence

subsumes a finding of an intention to alter, destroy or conceal it. As noted, Rabb’s

prosecution for tampering under Penal Code § 37.09(a)(1), like Thornton’s under §

37.09(d)(1), required proof that Rabb acted with the specific intent to impair the

availability of the baggie containing pills as evidence. That proof is the subject of the

third element of the analysis, and we have stated our conclusion that the trial court

necessarily found such proof when it convicted Rabb of tampering. However, because

the trial court may have determined that Rabb only knowingly destroyed the baggie

containing pills, we cannot agree that the rationale outlined in the Thornton opinion’s

footnote 59 permits us to assume the trial court’s finding Rabb acted with the specific

       3
          Parts of the Thornton opinion’s discussion in its footnotes 59 and 60 can be
read to say, in effect, that the second element of the analysis is satisfied in every
conviction for tampering under Penal Code § 37.09(a)(1) or § 37.09(d)(1). See, e.g.,
425 S.W.3d at 301 n.59 (“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”) (italics in orig.). Our difficulty with such a
reading is that it renders the court’s discussion of the trial court’s charge unnecessary,
and runs contrary to the court’s repeated references to the jury’s “explicit” and “actual”
findings. See 425 S.W.3d at 301 & n.59 (“the synthesis of the tampering statute with
the attempt statute does not operate to attach a higher culpable mental state to the
element of concealment than the mental state the jury actually found in the course of
convicting the appellant of tampering with evidence” (italics ours); id. at 301 n.60 (“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.” (italics ours). But again, in this bench trial, and under the wording of the
indictment, the record does not establish that the trial court necessarily believed Rabb
intended to destroy the baggie containing pills. Rabb’s guilt would have been supported
by a conclusion he knowingly destroyed it. In this case we will apply the more narrow
reading of the Thornton opinion’s language.



                                              8
intent to impair the availability of the baggie containing pills necessarily subsumes a

finding he acted with the specific intent to destroy the baggie, or the pills.


       The fourth and fifth elements of the analysis require conclusions Rabb’s

conviction for tampering by destruction necessarily means the court found he did an act

amounting to more than mere preparation that tended but failed to result in the

destruction of the plastic baggie containing pills.       Following the analysis of those

elements in Thornton, 425 S.W.3d at 302, we find those elements satisfied here. But

we find the second element of the analysis unmet on this record, and thus are unable to

conclude that by convicting Rabb of tampering with evidence, the trial court must have

found every element necessary to convict him of the lesser-included offense of

attempted tampering. It is unnecessary for us to consider the second question, that

asking whether the record contains sufficient evidence to support a conviction for the

lesser-included offense. See Rabb, 434 S.W.3d at 620 (“If the answer to either of these

questions is no, the court of appeals is not authorized to reform the judgment”).


       Finding we may not reform the judgment of conviction, we leave undisturbed our

previous judgment of acquittal.




                                                  James T. Campbell
                                                     Justice



Publish.




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