Rabb, Richard Lee, PD-1472-14

Background

Appellant Richard Lee Rabb was convicted of tampering with evidence for allegedly destroying a baggie containing pills; appellate courts and the Court of Criminal Appeals (CCA) have twice found the State’s proof of "destroyed" insufficient.
The indictment charged only one statutory theory—"destroyed"—and did not allege "conceal" or "alter."
The CCA remanded to the court of appeals directing consideration under Thornton v. State (whether a factfinder necessarily found elements of a lesser-included offense and whether, viewing the record as if convicted of the lesser, the evidence is sufficient).
The core dispute is whether the conviction for the greater offense can be reformed to attempted tampering (a lesser-included offense) when the indictment and proof only alleged and failed to prove destruction.
Appellant argues the State failed to prove the specific intent required for attempted destruction and that due process and double-jeopardy concerns preclude reformation or remand; he asks the CCA to affirm the court of appeals and enter a judgment of acquittal.

Issues

Issue	Appellant's Argument	State's Argument	Held / Posture
I. Is attempt always established when a factfinder convicts of the completed offense?	No — conviction of the greater offense does not automatically prove a lesser attempt offense; reformation requires Thornton analysis and proof beyond a reasonable doubt.	Yes — attempt is always found when a guilty verdict on the greater offense is rendered (State urges reformation).	CCA previously required Thornton analysis; appellant urges courts to limit judgment reform to cases where jury necessarily found lesser elements.
II. Does the record show specific intent to destroy (required for attempted tampering) given the indictment charged only "destroyed"?	No — indictment alleged only "destroyed," and the State failed to prove specific intent to destroy the baggie beyond a reasonable doubt.	Yes — if the court found intent to impair evidentiary availability, that supports attempted tampering regardless of the exact act.	Prior CCA holdings held State’s proof of "destroyed" insufficient; appellant contends this precludes reformation absent proof of attempt.
III. What is the appropriate remedy (reformation, remand, or acquittal)?	Judgment of acquittal — reformation/remand would violate due process and double jeopardy; State waived remand as a remedy.	Reformation/remand are permissible remedies to correct the judgment to a lesser-included offense.	CCA remanded for Thornton consideration; appellant asks affirmation of court of appeals and entry of acquittal.
IV. Is the State’s requested relief (affirm conviction) procedurally available?	No — the State’s prayer seeks affirmation, which is inconsistent with prior CCA rulings of insufficiency and is not the relief properly sought; relief not requested is waived.	The State asks reversal of the court of appeals and affirmation of conviction (or reformation/remand in briefing).	Procedural posture: appellant argues the State’s requested relief is waived and unavailable given earlier insufficiency rulings.

Key Cases Cited

Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App.) (establishes two-step test for reforming judgments to lesser-included offenses)
Britain v. State, 412 S.W.3d 518 (Tex. Crim. App.) (courts should not reform judgments to lesser-included offenses absent proof beyond a reasonable doubt)
Rabb v. State, 434 S.W.3d 61 (Tex. Crim. App.) (CCA remanded to court of appeals to apply Thornton after finding State’s proof of "destroyed" insufficient)
Swearingen v. State, 101 S.W.3d 89 (Tex. Crim. App.) (due process requires proving every element of the offense alleged)
Wasylina v. State, 275 S.W.2d 908 (Tex. Crim. App.) (discusses notice and lesser-included charges)