Thurston, George Anthony
PD-1316-14
| Tex. App. | Apr 17, 2015Background
- Defendant George Thurston was tried for murder and tampering with physical evidence (human corpse) after a body was found wrapped and concealed near railroad tracks; jury acquitted on murder but convicted on tampering and sentenced to 80 years.
- Tampering charge was pleaded in two alternative paragraphs: (1) knowing an investigation or official proceeding was "pending or in progress" he altered/destroyed/concealed a corpse (Tex. Penal Code § 37.09(a)(1)); and (2) knowing an offense (murder) had been committed, he altered/destroyed/concealed the corpse to impair its availability as evidence (Tex. Penal Code § 37.09(d)(1)).
- Facts supporting tampering conviction: defendant admitted shooting victim, wrapping and tying the body in tarps/sleeping bag, transporting it in a pickup, disposing of the corpse, cleaning the garage, discarding weapon parts, and acknowledging he expected an investigation.
- On appeal, the central legal question was the meaning of "pending" in § 37.09(a)(1) — whether it requires an investigation already underway or includes an investigation "about to take place/impending."
- The Second Court of Appeals affirmed, adopting the Lumpkin construction that "pending" means "impending or about to take place," and this brief urges the Court of Criminal Appeals to affirm or remand to evaluate the § 37.09(d)(1) paragraph if necessary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of "pending" in Tex. Penal Code § 37.09(a)(1) | State: "pending" should be read as "impending/about to take place," to give effect to both alternatives in the statute and to cover conduct intended to frustrate an investigation. | Thurston: "pending" requires an investigation already commenced; his concealment occurred before any investigation was in progress, so (a)(1) cannot be satisfied. | Court of Appeals (and State urges CCA): adopt Lumpkin — "pending" = "impending/about to take place," sufficiency met. |
| Sufficiency of evidence under § 37.09(a)(1) when defendant is temporally/proximately removed from investigation | State: facts (confession, concealment, cleaning, disposing of parts, admitting expectation of investigation) support that defendant knew an investigation was impending and intended to impair evidence. | Thurston: lack of contemporaneous investigation means no knowledge of a pending investigation; evidence insufficient. | Court of Appeals: viewing evidence in light most favorable to verdict, a rational juror could find (a)(1) satisfied. |
| Whether "pending" and "in progress" are redundant if "pending" means "awaiting decision/unfinished" | State: statutory construction presumes every word has effect; interpreting "pending" as "impending" avoids redundancy with "in progress." | Thurston: insists on ordinary dictionary meaning that makes terms overlap, which would limit (a)(1). | Court of Appeals/State: adopt lumpkin approach to preserve distinct meanings. |
| Remedy if CCA rejects Lumpkin construction | State: if CCA reverses on (a)(1), remand to Court of Appeals to decide sufficiency under the alternative § 37.09(d)(1) paragraph alleged in indictment. | N/A | State requests remand for (d)(1) analysis; Court of Appeals previously declined to reach (d)(1). |
Key Cases Cited
- Lumpkin v. State, 129 S.W.3d 659 (Tex. App. Houston [1st Dist.] 2004) (interpreting "pending" in § 37.09(a)(1) to mean "impending/about to take place" to avoid redundancy)
- Williams v. State, 270 S.W.3d 140 (Tex. Crim. App. 2008) (knowledge mens rea principles applied to statutory elements)
- Barrow v. State, 241 S.W.3d 919 (Tex. App. Eastland 2007) (adopting Lumpkin reasoning about "pending")
- State v. Smith, 436 S.W.3d 751 (Tenn. 2014) (Tennessee Supreme Court found Texas/Lumpkin reasoning persuasive and held "pending" means "impending")
- Panell v. State, 7 S.W.3d 222 (Tex. App. Dallas 1999) (earlier contrary construction criticized by Lumpkin)