Lemarr v. State, 2016 Tex. App. LEXIS 1766

Background

Appellant Sandra Kay Lemarr was indicted for tampering with evidence (a white crystalline substance) and convicted after a bench trial of the lesser-included offense, attempted tampering with evidence; she received one year confinement.
Police performed a felony stop of a stolen-vehicle suspect; officers observed white crystalline shards and a small clear baggie with residue in the passenger area where Appellant had been sitting.
Officer West attempted to collect the substance as evidence; Officer Richardson placed Appellant in his patrol car and, after being Mirandized, Appellant told officers the driver had asked her to dump methamphetamine and that she knew it was meth.
At trial Appellant testified the driver tossed a baggie to her, it broke and spilled, she put the baggie into the door pocket while exiting, and she admitted pouring out contents and hiding the baggie to avoid being caught with drugs.
The trial court found Appellant guilty of attempted tampering with evidence; on appeal she argued she lacked knowledge of any narcotics investigation, did not knowingly alter/destroy/conceal evidence, and that the State’s evidence was insufficient.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Lemarr)	Held
Whether Appellant knew an investigation was pending such that tampering statute applies	Evidence (officers on-scene, felony stop, Appellant’s statements) shows Lemarr knew an investigation was in progress	Lemarr: initial stop was for a stolen vehicle/traffic matter; narcotics investigation arose only after dumping, so she lacked requisite knowledge	Court: Knowledge of some investigation suffices; no need for the investigation’s title to match the item allegedly tampered with — held for State
Whether Appellant acted with specific intent to impair availability of evidence vs. merely dispossessing herself	Appellant’s admissions (poured contents, placed baggie in pocket to avoid being caught) support inference of intent to impair evidence availability	Lemarr: she only sought to get rid of the baggie/drugs and dispossess herself, not to thwart evidence	Court: Credible admissions and surrounding facts permit factfinder to infer specific intent to conceal/impair; dispossession inference rejected
Whether the act amounted to more than mere preparation and constituted attempt	Physical acts (pouring contents, placing baggie in door pocket) were acts beyond mere preparation toward concealment	Lemarr: actions were not intended to impair availability as evidence, so attempt not proven	Court: Acts were sufficient to show attempt to conceal and failure to complete concealment; conviction affirmed

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence review)
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (apply Jackson standard and view evidence in light most favorable to verdict)
Williams v. State, 270 S.W.3d 140 (Tex. Crim. App. 2008) (investigation title need not match evidence destroyed; intent to impair availability to any known investigation suffices)
Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014) (discarding an object may be innocent; but factfinder may infer intent from surrounding evidence)
Rabb v. State, 483 S.W.3d 16 (Tex. Crim. App.) (affirming that knowledge of an investigation suffices even if evidence is unrelated to initial investigation)
Pannell v. State, 7 S.W.3d 222 (Tex. App.—Dallas 1999) (contrasting view — held narcotics investigation must be pending before dumping to support tampering conviction; rejected by higher authority)
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) (review requires evaluation of all evidence, direct and circumstantial)
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (use hypothetically correct jury charge to define elements)

Conclusion: The appellate court held the evidence was legally sufficient to support a conviction for attempted tampering with evidence and affirmed the trial court’s judgment.