677 S.W.3d 663
Tex. Crim. App.2023Background:
- Trooper Townes observed DeSean McPherson speeding, initiated a traffic stop, and saw brown objects fly out of McPherson’s truck; one struck the patrol car windshield.
- Townes could not identify the flying objects as they passed and pursued McPherson on the shoulder for 1.5–2 miles before McPherson stopped.
- When Townes approached, McPherson rolled down all windows and denied throwing anything, saying it was "napkins." Townes issued a speeding ticket and later reviewed video/GPS to locate the thrown items.
- On returning, Townes and others recovered five marijuana joints (wrapped in brown cigar paper) on the shoulder and one in the ditch; no one had continuous sight of the items from throw to recovery.
- McPherson was convicted of tampering (Tex. Penal Code § 37.09(a)(1)); the court of appeals reduced the conviction to attempted tampering, but the Court of Criminal Appeals reversed and affirmed the trial court’s tampering conviction.
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McPherson) | Held |
|---|---|---|---|
| Whether the evidence was legally sufficient to prove tampering by concealment | McPherson removed the joints from Townes’s sight while an investigation was underway, impairing their availability as evidence | The joints landed in plain view; Townes saw them thrown and quickly retrieved them, so there was no concealment | Held: Evidence was sufficient — Townes lost sight/notice of the joints during the investigation, supporting concealment intent |
| Whether the court of appeals misapplied legal-sufficiency review by reweighing evidence and relying on hypotheticals | The court of appeals improperly reweighed evidence and entertained facts not in the record when reversing | The court of appeals reasonably inferred attempted rather than completed concealment because the items were ultimately in plain view | Held: Court of appeals erred — it reweighed evidence and hypothesized alternate facts; review must be record-bound and defer to the jury |
Key Cases Cited
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (legal-sufficiency standard articulated)
- Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) (reviewing court must not reweigh evidence)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for evidence sufficiency: any rational juror could convict)
- Stahmann v. State, 602 S.W.3d 573 (Tex. Crim. App. 2020) (distinguishes when concealment is legally insufficient because officer never lost sight and investigation had not begun)
- Ransier v. State, 670 S.W.3d 646 (Tex. Crim. App. 2023) (successive discovery of evidence does not negate earlier concealment)
- McPherson v. State, 655 S.W.3d 468 (Tex. App.—Texarkana 2022) (court of appeals reduced conviction to attempted tampering)