Rabb, Richard Lee, 434 S.W.3d 613

Appellant Richard Lee Rabb was shopping when his step-brother was detained for shoplifting; police approached Rabb and obtained consent to search him.
During a pat-down, an employee saw a corner of a plastic baggie in Rabb’s hand; Rabb put the baggie in his mouth and then swallowed it during a struggle with officers.
Rabb told medics the baggie contained pills; no attempt was made by police or medics to retrieve or inspect the baggie or its contents.
The State indicted Rabb under Tex. Penal Code § 37.09(a)(1) alleging he “destroyed” the baggie with intent to impair its availability as evidence; he was convicted and sentenced to six years.
The Seventh Court of Appeals reversed and rendered an acquittal, holding the evidence showed concealment but not destruction; the State sought discretionary review.
The Court of Criminal Appeals held overlap can exist between “conceals” and “destroys,” but concluded no rational trier of fact could have found destruction here given the absence of evidence about the condition or recovery of the baggie; remanded to the court of appeals to consider whether judgment should be reformed under Thornton.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether “conceals” and “destroys” overlap under § 37.09(a)	Legislature used distinct terms but overlap is possible; State argued swallowing could be destruction	Rabb: swallowing constituted concealment, not destruction; no evidence of ruination	Overlap exists in principle, but terms are distinct; court agreed concealment and destruction need not be interchangeable
Whether factfinder could infer destruction from swallowing	State: reasonable inference that passage into digestive tract destroyed the baggie and pills	Rabb: no evidence on condition after swallowing; inference of destruction is speculation	No rational factfinder could infer destruction here because the State presented no evidence about the baggie’s condition or any recovery attempt
Whether appellate court must reform judgment to a lesser-included offense rather than acquit	State: should reform to attempted tampering or lesser-included offense (per Bowen)	Rabb: acquittal appropriate because charged element (destroy) not proven	Court remanded to court of appeals to apply Thornton’s two-step test to decide if reformation is required

Jackson v. Virginia, 443 U.S. 307 (constitutional standard for sufficiency of the evidence)
Williams v. State, 270 S.W.3d 140 (Tex. Crim. App. 2008) (construction: “destroyed” means ruined or rendered useless; distinct from "conceal")
Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014) (two-step test for reforming judgment to lesser-included offense)
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (permitting reasonable inferences but forbidding speculation)
Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011) (sufficiency measured by elements actually pleaded)
Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012) (discusses reformation of acquittal to lesser-included offense)