548 S.W.3d 46
Tex. App.2018Background
- On July 1, 2012, Karl Dean Stahmann was involved in a two-vehicle collision; bystanders observed him exit a van bleeding from a head wound and throw an orange prescription pill bottle over a nearby chain-link fence into brush. Police retrieved the bottle in daylight; it contained promethazine tablets (a dangerous drug) and bore a prescription label.
- Bystanders testified they never lost sight of the bottle; officers saw it on the other side of the fence and recovered it after accessing a gate. Evidence at trial also included open beer cans in the van and blood on the van and driver.
- Stahmann was indicted for tampering with physical evidence (Tex. Penal Code § 37.09) under alternative theories and convicted by the jury of tampering; attempted tampering was submitted as a lesser included but not answered by the jury.
- At earlier community-supervision revocation proceedings in a separate case, the court found some allegations true and expressly found the intoxication-assault allegation not true; remarks at that hearing suggested disbelief that Stahmann was intoxicated, though no formal findings of fact were entered on intoxication.
- On appeal to the Thirteenth Court of Appeals, Stahmann raised 17 issues: insufficiency of the evidence, motion to quash part of the indictment, requested jury instructions (including unanimity), collateral estoppel/double jeopardy based on the prior adjudication remarks, and prosecutorial misconduct in closing argument.
- The Court reversed the tampering conviction as to the completed offense, reformed the judgment to attempted tampering (a state‑jail felony), and remanded for a new punishment hearing.
Issues
| Issue | Stahmann's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support tampering (alter/destroy/conceal) | Evidence insufficient to show the bottle was altered, destroyed, or concealed | Jury could infer alteration from torn/smudged label and concealment from throwing bottle into brush | Reversed as to completed tampering: evidence insufficient to show alteration or actual concealment; but sufficient evidence supports attempted tampering, so judgment reformed to attempted tampering |
| Whether judgment may be reformed to attempted tampering | Reformation impermissible where indictment charged alternate statutory subsections with distinct elements | Reformation proper under Thornton if jury necessarily found elements of attempt and evidence supports attempt | Court applied Thornton and reformed judgment to attempted tampering (state‑jail felony) |
| Motion to quash indictment (37.09(d)(1) paragraph failing to name underlying “offense”) | Indictment must name the specific offense alleged under subsection (d)(1) to give adequate notice | The term “offense” in §37.09(d)(1) need not identify a specific offense; indictment tracking statute sufficed and defendant had actual notice | Trial court did not err in denying motion to quash; indictment adequate |
| Jury unanimity re: which “offense” defendant knew under §37.09(d)(1) | Jury must be instructed to specify which offense and must be unanimous on that offense | Identity of the underlying “offense” is a preliminary factual issue; unanimity on that preliminary fact is not required when only one discrete act is alleged | Denial of requested unanimity/instructions not error; unanimity requirement satisfied because evidence showed one discrete act (throwing bottle) |
| Collateral estoppel/double jeopardy based on prior revocation court remarks about intoxication | Prior court’s “not true” finding on intoxication-assault bars relitigation about intoxication; thus related tampering ruling/instructions were erroneous and double jeopardy/issue preclusion apply | The revocation proceeding did not necessarily decide intoxication as an ultimate fact for tampering; intoxication is not an element of tampering and jury could find knowledge of an "offense" other than intoxication | Collateral estoppel and double jeopardy claims rejected; any adverse rulings harmless because conviction supported under §37.09(a)(1) (knowledge an investigation was pending) |
| Prosecutorial misconduct in closing (various remarks, “rabbit trail”, striking over shoulders of counsel) | Prosecutor injected matters outside record, attacked defendant over counsel’s shoulder, and made incurable statements requiring mistrial | Arguments were permissible rebuttal, reasonable deductions, or not so prejudicial as to require mistrial; court sustained/disregarded some remarks and issued curative instructions | No reversible misconduct; objections overruled in part, mistrial denied; appellate review found no abuse of discretion |
Key Cases Cited
- Griffin v. State, 491 S.W.3d 771 (Tex. Crim. App.) (standard for reviewing sufficiency of evidence)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.) (Jackson v. Virginia standard; jury as sole judge of credibility)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (constitutional sufficiency standard)
- Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App.) (standards for reforming judgment to lesser-included/attempt crimes)
- Rabb v. State, 483 S.W.3d 16 (Tex. Crim. App.) (attempt analysis in tampering context)
- Canida v. State, 434 S.W.3d 163 (Tex. Crim. App.) (appellate reformation to lesser-included offense)
- Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App.) (jury unanimity and single‑criminal‑act requirement)
- Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App.) (disjunctive submission and verdicts on alternate theories)