Rabb, Richard Lee
2016 Tex. Crim. App. LEXIS 21
| Tex. Crim. App. | 2016Background
- Appellant Richard Rabb swallowed a small baggie (he later told a medic it contained pills) while being searched during a theft investigation at Walmart; no attempt was ever made to recover the baggie or pills.
- Indictment charged tampering with evidence by destruction, alleging Appellant "intentionally or knowingly" destroyed a plastic baggie to impair its availability as evidence.
- Bench trial: trial court found Rabb guilty and sentenced him to six years’ imprisonment.
- On direct appeal, the court of appeals reversed and acquitted for insufficient evidence that the baggie was destroyed; this Court agreed the evidence was insufficient to prove destruction but remanded to consider reformation to attempted tampering under Thornton.
- On remand the court of appeals refused reformation (concluding the factfinder did not necessarily find the specific intent to destroy), and the State sought discretionary review; the CCA granted review to decide whether the judgment should be reformed to attempted tampering.
- The CCA held the factfinder necessarily found the elements of attempted tampering and that the evidence was sufficient to support attempted tampering; it ordered the trial court to reform the judgment to a conviction for attempted tampering and to conduct a new punishment hearing.
Issues
| Issue | State (Plaintiff) Argument | Rabb (Defendant) Argument | Held |
|---|---|---|---|
| Whether a conviction for a completed offense "necessarily" establishes guilt of the lesser-included attempt | A guilty verdict for the completed offense necessarily includes attempt (Art. 37.09(4)); attempt follows whenever the completed offense requires specific intent | Attempt is not always coextensive; Thornton test must be applied case-by-case and indictment wording matters | Not always automatic; apply Thornton two-prong test, but here the factfinder necessarily found attempt |
| Whether a factfinder’s finding that defendant intended the result (impair availability) necessarily implies he intended the means (to destroy/conceal) | Intent to cause the result demonstrates the specific intent required for attempt regardless of whether destruction or concealment was alleged | Reformation would bypass pleading specificity and due process; State alleged only destruction, so intent to destroy must be proved | Following Thornton, intent to impair the evidence’s availability necessarily implies intent to alter/destroy/conceal; here factfinder necessarily found the requisite specific intent |
| Sufficiency of evidence to support attempted tampering | Video, officers’ testimony that an investigation was in progress, and Appellant’s swallowing/baggie admission support a reasonable inference of intent to destroy/impair | Evidence was insufficient to prove destruction; reformation without proof violates due process and improperly changes the offense tried | Evidence was sufficient under Jackson v. Virginia standard to support attempted tampering by destruction (swallowing is a reasonable inference of intended destruction) |
| Proper remedy when greater-offense conviction cannot stand but lesser-included is proven | If attempt not necessarily found, retry on lesser-included offense rather than acquittal; no double jeopardy if factfinder never decided attempt | Reformation post-trial is equivalent to changing the indictment and violates due process; retrial is double jeopardy | Where Thornton prongs are met, reformation (followed by new punishment hearing) is the appropriate remedy; CCA ordered reformation here |
Key Cases Cited
- Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014) (establishes two-prong test for reformation to lesser-included attempt: 1) jury necessarily found every element of attempt; 2) evidence supports attempt)
- Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012) (discussed reformation remedies when evidence of an aggravating element is insufficient)
- Jackson v. Virginia, 443 U.S. 307 (1979) (legal-sufficiency standard: whether any rational trier of fact could find guilt beyond a reasonable doubt)
- Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) (permitting reasonable inferences from circumstantial evidence)
- Gonzales v. State, 532 S.W.2d 343 (Tex. Crim. App. 1976) (distinguishing when attempt is inconsistent with the culpable mental state of the completed offense)
- McCravy v. State, 642 S.W.2d 450 (Tex. Crim. App. 1980) (acts constituting more than mere preparation and the ‘‘last proximate act’’ analysis for attempt)