Lead Opinion
Opinion
Aрpellant, Jesse Antonio Gaitan, appeals his convictions for tampering with physical evidence and being a felon who unlawfully possessed a firearm. He contends that the evidence was insufficient to show that he attempted to conceal, destroy, or alter the weapon or that he possessed it. We affirm.
Background
The weapon in question was a 45-caliber handgun the police found by a fеnce around midnight. The officer who discovered the weapon was responding to a dispatch about a disturbance, along with another officer. When the former arrived, he noticed appellant discard something metallic near a carport doorway. At the time, appellant was being told but was refusing to stop. Instead, he was walking toward the carport. Various other people at the scene impeded the officer’s search for the discarded item. Nonetheless, he found the handgun.
Appellant’s estranged wife testified that she had seen appellant with the same handgun earlier that month. And, though appellant told the officers that he was merely throwing away a beer can, he acknowledged having handled a gun on an earlier date. The weapon was determined to have been stolen.
The evidence that appellant was seen discarding a metallic object through a doorway by which he passed, the discovery of the object or handgun by the police in the viсinity of where appellant tossed the object, and appellant’s wife stating that the handgun was in appellant’s possession earlier is some evidence upon which a rational factfinder could conclude beyond reasonable doubt that appellant possessed the weapon as alleged in the indictment. Coupling that with evidence of appellant’s status as a prior felоn subject to prosecution for possessing a firearm, see Tex. Penal Code Ann. § 46.04 (West 2011) (describing the offense of a felon possessing a firearm), his desire not to be found with the discarded object, his refusal tо heed the officer’s directive to stop, and his discarding the object into the night, the same factfinder could also deduce beyond reasonable doubt that appellant concealed thе weapon from the officers. This is so given that the Fort Worth Court of Appeals construed “conceal” to mean “the act of removing from sight or notice; hiding.” Rotenberry v. State,
Accordingly, the issues are overruled, and the judgment is affirmed.
Notes
. Unlike the circumstances in Thornton v. State, No. 07-11-0069-CR, 2012 Tex.App. Lexis 6493 (Tex.App.-Amarillo, August 7, 2012, pet. filed), we do not have an officer "repeatedly confirming] ... that the object Appellant removed from his pocket ... was never concealed from him because it never left his sight.” Id. at *818. Rather, they liken to another case cited by the dissent, Lujan v. State, No. 07-09-003 6-CR,
. Though the dissent would modify the judgmеnt to remove verbiage relating to the assessment of attorney’s fees, that was not a matter raised by appellant. Nor is it jurisdictional. So, it was waived.
Concurrence in Part
Concurring and Dissenting Opinion
Appellant, Jesse Antonio Gaitan, appеals his convictions for tampering with physical evidence
Tampering with Physical Evidence
I am bothered by the frequency with which prosecutors of this State have turnеd to section 37.09 of the Texas Penal Code to “double-down” on defendants by seeking a second conviction for “tampering with evidence” when an accused merely acts to dispossess himself or herself of evidence of another crime. I do not believe the Legislature intended section 37.09 to be used in that fashion, and until
A person commits the offense of tampering with evidence if, knowing that an investigation or official proceeding is pending or in progress, he alters, destrоys, or conceals any record, document or thing with intent to impair its verity, legibility or availability as evidence in any subsequent investigation of or official proceeding related to the offense. See Tex. Penal Code Ann. § 37.09(a)(1) (West Supp.2012). In this case, the indictment alleges that Appellant did, “knowing that an investigation was in progress, ... intentionally or knowingly conceal a firearm ... with intent to impair its verity or availability as еvidence in the investigation.” The critical element here is the act of concealment. “Conceal” is not defined by section 37.09, or elsewhere in the Penal Code. Courts of this State have, howevеr, held it to mean to hide, to remove from sight or notice; to keep from discovery or observation. See Rotenberry v. State,
In fact, this Court has held that “conceal” means “to prevent disclosure or recognition of’ or “to place out of sight.” See Lujan v. State, No. 07-09-0036-CR,
Because the evidеnce in this case established, at best, that Appellant merely dispossessed himself of the firearm in question, I would find that no rational trier of fact could have found that Appellant “concealed” that evidence and I would sustain Appellant’s first point of error. Accordingly, I would reverse the judgment of conviction and render a judgment of acquittal.
Unlawful Possession of FireaRM
I concur with the majority decision to affirm Appellant’s conviction for the offense of unlawful possession of a firearm; however, I would modify the judgment to delete the finding that assesses court-appointed attorney’s fees “as approved by the Judge.”
Pursuant to article 26.05(g) of the Texas Code of Criminal Procedure, if a trial court determines that a defendant has financial resources that enable him to repay, in whole or in part, the costs of legаl services provided by a court-appointed attorney,
Here, the judgment implies the trial court might somehow approve, post-judgment, the assessment of court-appointed attorney’s fees. Because no evidence of Appellant’s ability to pay was introduced at trial, a correct judgment would reflect either “N/A” or “None.” Accordingly, I would modify the judgment to delete the order to pay attorney’s fees “as approved by the Judge” and I would substitute in its place the word “None.”
. Trial Court Cause No. CR16105, Appellate Cause No. 07-12-0049-CR; Tex. Penal Code Ann. § 37.09(a)(1) (West Supp.2012). Although the Judgment references § 37.09(d)(1), the correct statute of offense is § 37.09(a)(1).
. Trial Court Cause No. CR16106, Appellate Cause No. 07-12-0050-CR; Tex. Penal Code Ann. § 46.04(a) (West 2011).
. An actio malum prohibitum is "[a] wrong prohibited; a thing which is wrong because prohibited; an act which is not inherently immoral, but becomes so because its commission is expressly forbidden by positive law; an act involving an illegality resulting from positive law.” Tovar v. State,