KARL DEAN STAHMANN v. THE STATE OF TEXAS
NUMBER 13-16-00400-CR
COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
On appeal from the 207th District Court of Comal County, Texas.
OPINION
Before Justices Rodriguez, Contreras, and Benavides
Appellant Karl Dean Stahmann was convicted of tampering with physical evidence, a third-degree felony. See
We find insufficient evidence to support the tampering conviction, but sufficient evidence to support a conviction for attempted tampering with physical evidence. Accordingly, we reverse and remand.1
I. BACKGROUND
This case arises from a two-vehicle collision on State Highway 46 outside of New Braunfels. Norberto Gonzalez testified that he was driving his SUV with his wife and son as passengers, on July 1, 2012 at around 4:30 p.m., when he saw a van approaching from the opposite direction. Gonzalez testified that he saw the van “starting to turn toward us, and I‘m thinking maybe he sees me; he‘ll stop. But he kept going, and we hit each other.” Gonzalez stated the van did not have its turn signal activated. He testified he was driving around fifty miles per hour at the time, that it had been raining earlier in the day, and that the van was slowing down as it started to turn. After the collision, Gonzalez remembered the SUV spinning around and the air bag deploying. He saw blood on the windshield of the van and on the face of its driver. On cross-examination, Gonzalez stated that there was a housing subdivision off to the side of the road, into which it appeared the van was turning. He conceded that he had not told police that
Two bystanders, Ronnie Ballard and Michael Freeman, arrived at the scene and called 911. Ballard testified that he saw two people inside the van. When Ballard approached the van, the driver—whom Ballard identified as Stahmann—exited. Stahmann was bleeding from his forehead, was “very upset” and “agitated,” and “was complaining he couldn‘t see out of one eye.” Ballard testified that he was about ten or fifteen feet away from Stahmann when he observed the following:
The driver walked towards the fence that was—there was a gated fence right near the accident scene. At that time, I saw him throw something over the—over the fence into—near a tree into some small, you know, kind of shrubbery at the bottom of that tree. It looked like—looked to be, like, a prescription medicine bottle. . . . [A]s I walked over towards to see—you know, kind of get a better look to see, you know, where the bottle had went, he started asking me what I was doing over there, what was I looking for, why am I over there. You know, he was angry. . . . [H]e wanted us to call his dad. He kept asking to leave and go—he said, I just live right up—my dad lives right up the street. I need to go see him. I need to leave here. And we just kept asking [sic] him, No. You need to stay until somebody arrives on the scene.
Ballard also stated that, when he and Freeman came upon the scene, he saw opened beer cans inside the van, and he noticed that a couple of the cans had fallen out of the van. He stated that Stahmann seemed “disheveled from the accident” but otherwise did not appear confused or disoriented.
Freeman testified that Stahmann did appear confused and disoriented and was “bleeding real bad” from his head. Freeman tried calling Stahmann‘s father, at Stahmann‘s request, but there was no answer. Freeman corroborated Ballard‘s account that Stahmann threw what appeared to be a prescription medication bottle over the wire fence next to the accident scene. Freeman stated that, as he and Ballard were walking away from where the pill bottle was, Stahmann “got real nervous and started questioning us, why we were over there and what were we looking for.”
Terry Aikman, a retired paramedic, was passing by the accident scene and stopped to give assistance. He testified that Stahmann had a large gash over his left eye and was bleeding profusely. According to Aikman, Stahmann did not appear intoxicated but seemed to be “unaware of his situation” due to shock. He stated that, pursuant to his training, he asked Stahmann four questions to test whether he was “alert and oriented“—“the president, the day, the month, what year“—and that Stahmann answered all of the questions correctly, indicating that “he‘s aware of his surroundings” even though he was in pain.
According to Ballard and Freeman, when police arrived, they advised officers that they saw Stahmann throw something over the fence, and they pointed out where it was. Police were able to retrieve the item that was thrown over the fence—an ordinary orange prescription medication bottle with a label and a white cap. The officer who retrieved the bottle stated that it was sitting on top of the grass on the other side of the fence. The bottle contained four intact white tablets along with several broken ones and some powder. The label on the bottle stated the name “James Castaneda” and listed its contents as “promethazine tab 25 mg.” A Department of Public Safety chemist tested the pills and determined that they contained promethazine, a prescription cough suppressant.
The jury charge included instructions on the offenses of tampering with physical evidence and attempted tampering with physical evidence. The jury found Stahmann guilty of the former offense and, pursuant to the charge instructions, did not answer the question regarding the latter offense. This appeal followed.
II. DISCUSSION
A. Evidentiary Sufficiency
By his first issue on appeal, Stahmann argues that there was insufficient evidence to support his conviction for tampering with physical evidence. By his second issue, he contends that the trial court erred by denying the motion for instructed verdict he filed at the close of evidence. We address the issues together. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (noting that “a complaint about overruling a motion for directed/instructed verdict is in actuality an attack upon the sufficiency of evidence to sustain the conviction“).
1. Standard of Review and Applicable Law
In reviewing sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Griffin v. State, 491 S.W.3d 771, 774 (Tex. Crim. App. 2016); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We resolve any evidentiary inconsistencies in favor of the judgment, keeping in mind that the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give their testimony. Brooks, 323 S.W.3d at 899; see
Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State‘s burden of proof or unnecessarily restrict the State‘s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Villarreal, 286 S.W.3d at 327; Malik, 953 S.W.2d at 240.
Here, a hypothetically correct charge authorized by the indictment would instruct the jury to find Stahmann guilty of tampering with physical evidence if: (1) knowing that an investigation or official proceeding was pending or in progress, (2) he altered, destroyed, or concealed a bottle of pills (3) with intent to impair its verity or availability as evidence in the investigation or official proceeding; or (1) knowing that an offense was committed, (2) he altered, destroyed, or concealed a bottle of pills (3) with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense. See
A person acts with knowledge with respect to circumstances surrounding his conduct when he is aware that the circumstances exist.
2. Destroyed, Altered, or Concealed
Stahmann first argues that the evidence was insufficient to show that he destroyed, altered, or concealed the bottle of pills, as alleged in the indictment. The State concedes that there was no evidence that Stahmann destroyed the bottle. See Williams v. State, 270 S.W.3d 140, 146 (Tex. Crim. App. 2008) (interpreting “destroyed” as “ruined and rendered useless“). It argues instead that the evidence was sufficient to allow jurors to conclude that he altered or concealed the bottle.
“Alter” is not defined by statute but may be commonly understood to mean “to change; make different; modify.” Id. (citing WEBSTER‘S UNABRIDGED DICTIONARY at 52 (2nd ed. 1983)); see Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) (noting that “undefined statutory terms are to be understood as ordinary usage allows, and jurors may thus freely read statutory language to have any meaning which is acceptable in common parlance“). The State notes that, according to photographs admitted as evidence at trial, the label on the pill bottle was partially torn and its text partially smeared when it was recovered by police. The State cites Blanton v. State, No. 05-05-01060-CR, 2006 WL 2036615 (Tex. App.—Dallas July 21, 2006, pet. ref‘d) (not designated for publication), in arguing that it was reasonable for the jury to infer that this “alteration” was caused by Stahmann throwing the bottle over the fence and onto the ground. In Blanton, the appellant threw two plastic baggies out of his window as he was being pursued for a traffic violation. Id. at *1. Police later recovered the baggies, which were ripped but still contained a measurable amount of cocaine and marijuana. Id. The Dallas Court of Appeals held that there was sufficient evidence to show that appellant “altered” the baggies because, even though there was no evidence as to the appearance of the baggies prior to the time they were thrown out of the car window, the jury could rationally infer that the rips in the bags were caused by appellant. Id. at *2.
The State contends that, as in Blanton, the jury in this case could have reasonably inferred that Stahmann altered the pill bottle from evidence that (1) he threw the bottle over the fence, (2) it had been raining earlier in the day, and (3) some of the text printed on the label had been smudged.2 We disagree. There was no evidence
bags of drugs—were in a functionally useless state when they were recovered. See 2006 WL 2036615, at *2. It was reasonable for the jury in Blanton to have inferred that the rips in the bags were caused when the appellant threw them out of his car window, because it is reasonable to assume that the appellant would not have been carrying his drugs around in already-ripped bags. Here, there is no similar reason for the jury to have assumed that the pill bottle‘s label was intact—that is, that it had no tears or smudging—prior to the time it was thrown.
Next, we consider whether there was sufficient evidence that Stahmann concealed the pill bottle. Like “alter,” “conceal” is not defined by statute, but the term may be generally understood as “to hide, to remove from sight or notice, or to keep from discovery or observation.” Thornton v. State, 401 S.W.3d 395, 398 (Tex. App.—Amarillo 2013), rev‘d on other grounds, 425 S.W.3d 289 (Tex. Crim. App. 2014); Rotenberry v. State, 245 S.W.3d 583, 588–89 (Tex. App.—Fort Worth 2007, pet. ref‘d); see also Villarreal v. State, No. 13-15-00014-CR, 2016 WL 8919852, at *5 (Tex. App.—Corpus Christi Dec. 8, 2016, no pet.) (mem. op., not designated for publication). In Thornton, the Amarillo Court of Appeals found insufficient evidence of concealment where the appellant pulled a crack pipe from his pocket and dropped it to the ground in the presence of two police officers, because the pipe never left the officers’ sight. 401 S.W.3d at 397, 399–400. In Villarreal, this Court found insufficient evidence of concealment where the appellant took a pill bottle out of his pocket and tossed it underneath a car while being pursued by a Wal-Mart loss prevention officer. 2016 WL 8919852, at *1–2 (noting that the loss prevention officer testified that the pill bottle “was not hidden in any way“).
We find the instant case to be analogous to Thornton and Villarreal. Ballard testified that he observed Stahmann throw the pill bottle over the fence and into some “shrubbery at the bottom” of a tree, but he stated that the fence was a “chain fence,” not a “full fence,” and that he “could see all the way to the ground on the other side.” Freeman testified that he saw the pill bottle in Stahmann‘s hand, in the air, and on the ground on the other side of the fence. He agreed that he “never lost sight of it” and that he pointed it out to police as soon as they arrived. Freeman stated that he could see it “[as] plain as day right there in the—he tried to throw it in the brush, but it didn‘t make it.”
Comal County Sheriff‘s Deputy Chris Koepp, the first officer to arrive on scene, testified that when he arrived he “[o]bserved an object over the fence.” He agreed that he was “able to very clearly see it” and he was able to identify it as an
There was no evidence from which a juror could have reasonably inferred that the pill bottle was ever hidden, removed from sight or notice, or kept from discovery or observation. See Thornton, 401 S.W.3d at 398; see also Thornton, 425 S.W.3d at 307 (Keller, P.J., concurring) (“Whatever else ‘conceal’ might mean in the context of the tampering with evidence statute, it at least means to remove from sight.“).3 Instead, the
evidence established that the pill bottle remained in full sight of bystanders from the time it was thrown by Stahmann, and of police from the time they arrived, until the time it was retrieved as evidence.
The State cites Munsch v. State, No. 02-12-00028-CR, 2014 WL 4105281, at *8 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op., not designated for publication) and Lujan v. State, No. 07-09-0036-CR, 2009 WL 2878092, at *2 (Tex. App.—Amarillo Sept. 9, 2009, no pet.) (mem. op., not designated for publication). These unpublished cases are distinguishable or inapposite. In Munsch, the appellant was a passenger in a car stopped by police. 2014 WL 4105281, at *1. The driver of the car told police at the scene that, as police were in pursuit, the appellant had thrown a bag of methamphetamine out of the passenger-side window; police then went back and retrieved the bag, which contained eighteen grams of methamphetamine. Id. at *2. The court found sufficient evidence that appellant concealed the bag from the officers, noting that the officers “may never have returned to locate it” had the driver not informed them of its existence, and that the officer who retrieved the bag “had difficulty locating it with his flashlight given the darkness of night.” Id. at *8. The State argues that the instant case is similar because, as in Munsch, the officers were only made aware of the existence of the allegedly concealed evidence when a “third-party witness volunteered the information.” But there is nothing in this case indicating that the officers would not have found the pill bottle had
Ballard and Freeman not alerted them to it. Instead, the testimony unanimously established that the pill bottle was plainly visible from the accident site, and that it was not difficult to locate in the afternoon daylight.
In Lujan, the appellant, while being stopped by an officer who suspected a drug transaction, made a throwing motion,
which [appellant] engaged was insufficient to actually prevent the officer from finding or retrieving the pipe“). Actual concealment requires a showing that the allegedly concealed item was hidden, removed from sight or notice, or kept from discovery or observation. See Thornton, 401 S.W.3d at 398. Such evidence was lacking here.
Finally, the State directs us to a case arising out of the same accident, in which Stahmann was found to have violated the terms of his unrelated community supervision by, among other things, tampering with physical evidence on July 1, 2012. See Stahmann v. State, No. 03-15-00068-CR, 2016 WL 3974567, at *1 (Tex. App.—Austin July 19, 2016, pet. ref‘d) (mem. op., not designated for publication). There, the Austin Court of Appeals stated that “the trial court heard conflicting testimony about whether the pill bottle was visible where it landed on the other side of the fence” and “could have credited the testimony that the bottle ‘got submerged down in some brush area’ and was concealed by the bushes.” Id. at *3. But no such testimony appears in the record before this Court. In our evaluation of the sufficiency of the evidence, we may not credit testimony that was not before the trier of fact at the guilt-innocence stage. See Barfield v. State, 63 S.W.3d 446, 450 (Tex. Crim. App. 2001).
For the foregoing reasons, we conclude that the evidence adduced at trial was insufficient to support a finding that Stahmann destroyed, altered, or concealed the pill bottle. We sustain this part of his first two issues.
3. Knowledge and Intent
support the jury‘s finding that he acted with knowledge that an investigation or official proceeding was pending or in progress. See
The jury was charged in this case under both subsections (a)(1) and (d)(1) of penal code section 37.09. Knowledge “that an investigation or official proceeding was pending or in progress” is an essential element under subsection (a)(1), but not under subsection (d)(1). See
We find the evidence sufficient to establish knowledge under section 37.09(a)(1). In the context of this statute, “pending” means “impending, or about to take place.” Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.—Houston [1st Dist.] 2004, pet. ref‘d) (noting that it is presumed that every word in a statute has been used for a purpose, and interpreting “pending” in such a way as to “avoid redundancy from use of the terms ‘pending’ and ‘in progress’ in the statute); see Barrow v. State, 241 S.W.3d 919, 923 (Tex. App.—Eastland 2007, pet. ref‘d) (citing Lumpkin, 129 S.W.3d at 663); see also Carr
v. State, No. 03-14-00234-CR, 2016 WL 465192, at *6 n.3 (Tex. App.—Austin Feb. 5, 2016, pet. ref‘d) (mem. op., not designated for publication) (“The Lumpkin court‘s choice makes sense as the statute might otherwise implement a policy that allows criminals to freely destroy evidence of their wrongdoing before they actually know law enforcement officials are looking for such evidence even if they strongly suspect an investigation will occur.“). The jury could have reasonably inferred that, having just been involved in a high-speed collision causing injury, Stahmann knew that a police investigation into the accident was about to take place when he threw the pill bottle.
Under subsection (a)(1), the State was additionally required to prove that Stahmann acted with intent to “impair [the] verity or availability [of the pill bottle] as evidence in the investigation or official proceeding.”
Intent may generally be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Here, the bystanders who first came upon the accident scene testified that, after they saw Stahmann throw the pill bottle over the fence, Stahmann became “angry” and “nervous.” According to Ballard, Stahmann expressed his desire to leave the scene of the accident. Ballard also stated that he saw open beer cans in Stahmann‘s vehicle, as well as some which had fallen out of the vehicle as a result of the accident. From this circumstantial evidence, a rational juror could have concluded beyond a reasonable doubt
that, when he threw the pill bottle, Stahmann‘s conscious objective or desire was to impair the pill bottle‘s availability as evidence in the investigation or official proceeding which he knew was pending or in progress. See
4. Reformation
The State argues that, in the event we find insufficient evidence of the completed offense of tampering but sufficient evidence of the lesser-included offense of attempted tampering, we should reform the judgment to reflect conviction on the latter offense. See
If an appellate court concludes that the evidence was legally insufficient to support a conviction, it must determine whether the judgment should be reformed to reflect a conviction for a lesser-included offense. See Canida v. State, 434 S.W.3d 163, 166 (Tex. Crim. App. 2014). As the court of criminal appeals explained in Thornton, reformation of the judgment is required if two prongs are satisfied: (1) in the course of convicting the
appellant of the greater offense, the jury must have necessarily found every element necessary to convict the appellant for the lesser-included offense; and (2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, there is sufficient evidence to support a conviction for the lesser-included offense at trial. Thornton, 425 S.W.3d at 289, 300. An outright acquittal under these circumstances would be unjust because the result would involve usurping the fact finder‘s determination of guilt. Id. at 298. A court of appeals should limit the use of judgment reformation to those circumstances when the commission of a lesser offense can be established from the facts that the jury actually found. Id.
Stahmann argues that the first prong of Thornton cannot be satisfied because subsections (a)(1) and (d)(1) of penal code section 37.09 each have distinct essential elements that the other subsection does not. He notes that other cases in which a tampering conviction was reformed to attempted
consider whether the jury, by its verdict, necessarily found all the elements of the attempted tampering offense. See Thornton, 425 S.W.3d at 289.
If the jury found Stahmann guilty under subsection (a)(1), the first prong of the Thornton reformation analysis is satisfied only if the jury, by its verdict, must necessarily have found that Stahmann: (1) knowing that an investigation or official proceeding was pending or in progress, (2) with specific intent to alter, destroy, or conceal the pill bottle and (3) with specific intent to impair its availability as evidence in the investigation or official proceeding, (4) did an act amounting to more than mere preparation that (5) tended to result in alteration, destruction, or concealment of the pill bottle. See
For the same reasons, we also conclude that the first prong of the Thornton reformation analysis is satisfied if the jury
The first prong of Thornton is satisfied, whether the jury found Stahmann guilty under subsection (a)(1), subsection (d)(1), or both. We further find that the second prong of Thornton is satisfied because the evidence, as outlined fully above, was sufficient to support the offense of attempted tampering with physical evidence, including the specific intent element and the “act amounting to more than mere preparation” element, whether under subsection (a)(1) or (d)(1) of section 37.09 of the penal code. See
The offense of criminal attempt is one category lower than the offense attempted.
B. Motion to Quash Indictment
By his fourth issue, Stahmann argues that the trial court erred by denying his motion to quash the second paragraph of Count IV of the indictment.12 Tracking penal code section 37.09(d)(1), this paragraph alleged that Stahmann, “knowing that an offense had been committed, did then and there alter, destroy or conceal a thing, to-wit: a bottle of pills, with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of official proceeding related to said offense.” See
The United States Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure each require that a charging instrument provide an accused with adequate notice. See
46 S.W.3d 243 (Tex. Crim. App. 2001). To constitute adequate notice, the instrument must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); see
Usually, an indictment tracking the language of the statute, as here, will satisfy constitutional and statutory requirements. State v. Barbernell, 257 S.W.3d 248, 251 (Tex. Crim. App. 2008); State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998). However, an indictment tracking the statute may be insufficient when the statutory language is not completely descriptive. Barbernell, 257 S.W.3d at 251 (citing Curry, 30 S.W.3d at 398). The statutory language is not completely descriptive “when the statutes define a term in such a way as to create several means of committing an offense, and the definition specifically concerns an act or omission on the part of the defendant.” Id. (citing Solis v. State, 787 S.W.2d 388, 390 (Tex. Crim. App. 1990); Geter v. State, 779 S.W.2d 403, 405 (Tex. Crim. App. 1989)). In such cases, more particularity is required to provide notice. Id. (noting that “if the prohibited conduct is statutorily defined to include more than one manner or means of commission, the State must, upon timely request, allege the particular manner or means it seeks to establish“).
Stahmann claims that a tampering charge under
We disagree. Arguably, both tampering under
Stahmann additionally contends that, even if the term “offense” in
In any event, “[a]n indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant.”
For the foregoing reasons, the trial court did not err in denying Stahmann‘s motion to quash the second paragraph of Count IV of the indictment. We overrule his fourth issue.
C. Jury Charge Error
By his fifth and sixth issues, Stahmann contends the trial court erred by denying his request to include instructions in the jury charge: (1) specifying which “offense(s)” he was alleged to have knowledge of under
Texas law requires that a jury reach a unanimous verdict about “the specific crime that the defendant committed.” Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011) (citing Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008)). This means that the jury must “agree upon a single and discrete incident that would constitute the commission of the offense alleged.” Id. (citing Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). But although “the jury must unanimously agree about the occurrence of a single criminal offense, they need not be unanimous about the specific manner and means of how that offense was committed.” Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011).
In Cosio v. State, the Texas Court of Criminal Appeals described three situations where non-unanimity issues may arise in the context of a criminal conviction: (1) “when the State presents evidence demonstrating the repetition of the same criminal conduct, but the actual results of the conduct differed“; (2) “when the State charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions“; and (3) “when the State charges one offense and presents evidence of an offense, committed at a different time, that violated a different provision of the same criminal statute.” Cosio, 353 S.W.3d at 771-72. The evidence at Stahmann‘s trial established only one “single and discrete” criminal act—that is, throwing the pill bottle over the fence. There was no suggestion, nor was there any evidence, of repeated instances of the same criminal conduct, whether the results were the same or different, or of an offense committed under a different provision of the statute
We have already concluded that, for notice purposes, the indictment was not required to specify the “offense” which Stahmann was alleged to have knowledge of under
Stahmann‘s fifth and sixth issues are overruled.
D. Collateral Estoppel
Stahmann raises several issues concerning the effect of certain findings made in a separate criminal proceeding in which he was found guilty of credit card or debit card abuse. See
The record reflects that Stahmann pleaded guilty to two counts of credit card or debit card abuse in the 274th District Court of Comal County on May 9, 2011. He was initially placed on five years’ deferred-adjudication community supervision, but the State moved for adjudication of guilt in 2014. The State alleged in its motion to adjudicate that Stahmann violated the terms of his community supervision in sixteen different ways—four of which correspond precisely to the four charges brought in the instant case. The 274th District Court found three of the allegations not true, and it found the remaining allegations true. The court therefore adjudicated Stahmann guilty of credit card or debit card abuse and sentenced him to two years’ confinement and a fine of $1,000.
One of the allegations which the 274th District Court found not true was that Stahmann committed intoxication assault against Gonzalez on July 1, 2012. At the adjudication hearing on December 1, 2014,14 the court remarked as follows at the close of the evidence:
Here‘s the problem you‘ve got—not you [defense counsel] in particular, mostly the State: You can‘t prove any of this. You can‘t prove that he was intoxicated at the time of the offense, you can‘t prove he was inhibited by drugs or alcohol. You can prove that he threw the pills over the fence while an investigation was going on. I can find that true. But all the things you want to prove, you simply haven‘t been able to prove. I mean, I can sit here and listen to you for the rest of the day, but you‘re not going to get there from here.
. . . .
The accident that occurred, I don‘t believe—it‘s nonsense about the fault of the window.15 You can blow that off. I‘m not going to pay any attention to that. He had an accident. Now, was it caused by any form of intoxication?
There‘s no evidence of that, other than him throwing a bottle of pills away.
The trial court made this statement in spite of the fact that there was evidence of open beer cans in Stahmann‘s van, as well as evidence that an analysis of Stahmann‘s blood indicated the presence of alcohol and narcotics. See Stahmann, 2016 WL 3974567, at *1. Stahmann‘s seventh through twelfth issues in this appeal contend that the trial court erred by making several rulings in light of this finding.
1. Standard of Review and Applicable Law
The Double Jeopardy Clause, contained within the Fifth Amendment to the United States Constitution and applicable to the states through the Fourteenth Amendment, protects an accused against a second prosecution for the same offense for which he has been previously acquitted or previously convicted.
To decide whether collateral estoppel bars a subsequent prosecution, a court must determine (1) exactly what facts were necessarily decided in the first proceeding, and (2) whether those “necessarily decided” facts constitute essential elements of the offense in the second trial. Id. at 795. “In each case, courts must review the entire trial record to determine—‘with realism and rationality‘—precisely what fact or combination of facts the jury necessarily decided and which will then bar their relitigation in a second criminal trial.” Ex parte Taylor, 101 S.W.3d 434, 441 (Tex. Crim. App. 2002) (quoting Ashe, 397 U.S. at 444). The defendant must meet the burden of proving that the facts in issue were necessarily decided in the prior proceeding. Murphy, 239 S.W.3d at 795.
In Ex parte Tarver, the Texas Court of Criminal Appeals held that, where the trial court makes a specific finding of fact that an allegation made in a motion to revoke probation is “not true,” the State is barred by collateral estoppel from relitigating that fact. 725 S.W.2d 195, 200 (Tex. Crim. App. 1986).
A decision to apply or not to apply collateral estoppel is a question of law applied to facts, for which de novo review is appropriate. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Ex parte Bolivar, 386 S.W.3d 338, 344 (Tex. App.—Corpus Christi 2012, no pet.).
2. Analysis
By his seventh issue, Stahmann argues that the trial court erred by denying his request for a limiting instruction after Koepp, the deputy sheriff who responded to the scene of the accident, testified at trial that in a case like this, he would typically investigate if the driver was under the influence of alcohol or drugs. By his eighth issue, he argues that the trial court erred in denying his request for a limiting instruction “on intoxication.”
By his ninth and tenth issues, he contends the trial court erred by denying his requests for instructions in the jury charge that the “offense” which he allegedly knew was committed under penal code subsection 37.09(d)(1) “cannot be related
We disagree with that contention. In the credit card or debit card abuse proceeding, the allegation determined to be “not true” was that Stahmann had committed intoxication assault against Gonzalez on July 1, 2012. One of the elements of this offense is that the person was intoxicated, but that is not the only element. See
Even assuming that 274th District Court “necessarily decided” that Stahmann was not intoxicated, that is not an element of tampering with physical evidence, which was the only offense charged to the jury in this case. See Murphy, 239 S.W.3d at 794; Taylor, 101 S.W.3d at 441; see also
In any event, Stahmann does not contend that any of the trial court‘s rulings which he complains about had any effect on the jury‘s consideration of the allegations under penal code subsection 37.09(a)(1), which does not require a showing of knowledge of an “offense.” Because, as we have already held, the evidence was sufficient to support conviction under that subsection, Stahmann cannot show that he was harmed by the failure of the trial court to instruct the jury in accordance with his requests. See
Stahmann‘s seventh through twelfth issues are overruled.
E. Improper Argument
By his final five issues, Stahmann contends that the trial court erred by overruling his objections to various remarks made by the prosecutor during closing argument at the guilt-innocence phase of trial.
1. Applicable Law and Standard of Review
Permissible jury argument falls into four distinct and limited categories: (1) summary of the evidence; (2) reasonable deductions from the evidence; (3) response to opposing counsel‘s argument; or (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Even if an argument is improper, it will not constitute grounds for reversal unless the statements to the jury injected new and harmful facts to the case, or were so extreme and manifestly improper that they deprived appellant of a fair and impartial trial. Id. at 573 n.3. We examine alleged improper argument in light of the facts adduced at trial and in the context of the entire argument. McGee v. State, 114 S.W.2d 229, 239 (Tex. Crim. App. 1989).
A trial court‘s ruling on an objection to improper jury argument is reviewed for abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). We also review a trial court‘s denial of a mistrial for abuse of discretion. Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011). In determining whether the trial court abused its discretion in denying a mistrial, we consider (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. Id.
“Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc); see
2. Remarks Outside The Record
The first allegedly improper remark, challenged in Stahmann‘s thirteenth issue, is as follows:
| [Prosecutor]: | . . . I told you-all from the very beginning this was a simple case, just a simple case of tampering. But as you‘ve seen through the trial, it turned into something a little bit different. And that‘s why I always talk about the roles of advocates. |
| [Defense counsel]: | Excuse me, Judge. I object to this. This is not part of the evidence. |
| [Prosecutor]: | Argument. |
| THE COURT: | Overruled. Overruled. It‘s argument. |
By his fourteenth issue, Stahmann complains of the following remark made immediately thereafter:
| [Prosecutor]: | That‘s why I talked to you [during jury selection] about the OJ trial. |
| [Defense counsel]: | Excuse me, Judge. |
| [Prosecutor]: | That‘s why I talked to you— |
| [Defense counsel]: | I object to him talking about trials that are not part of this case. |
| [Prosecutor]: | Argument, Your Honor. |
| | Let‘s refrain from referring to other cases that have nothing to do with this particular case. |
Stahmann contends that the trial court erred by denying his objections to these remarks because they were “impermissibly outside the evidence and record.”
We disagree. As to both remarks, the prosecutor was referring back to earlier comments he had made during jury selection—which were not objected to—regarding the role of a defense attorney to zealously represent his client. The comments did not inject new or harmful facts to the case, nor were they so extreme or improper as to deprive Stahmann of a fair and impartial trial. See Brown, 270 S.W.3d at 573 n.3. Additionally, as to the second complained-of remark, the trial court did not explicitly rule on counsel‘s objection, and to the extent it did rule, it did not do so adversely to Stahmann. See
3. Striking Over Shoulders of Counsel
By his fifteenth and sixteenth issues, Stahmann complains of the following remarks:
| [Prosecutor]: | When you look at the roles of advocates and how the evidence is presented to you, that‘s how you get off on tangents like the white powder. That‘s how you get off on the other tangents that we‘ve gone down about pictures being taken. That‘s how you get off into things like that. That‘s how—it‘s presented to you in a way that‘s not necessarily the truth. |
| [Defense counsel]: | Excuse me, Judge. I object to that as striking at Karl over the shoulder of counsel to indicate that we have done anything that was not truthful. |
| THE COURT: | Overruled. This is argument, ladies and gentlemen. |
You will recall the evidence as you see fit. You are the sole judges of the evidence and the weight and credibility of the evidence as well as the testimony.
And, once again, as I‘ve told you many times, the statements by the attorneys are not evidence.
Let‘s proceed.
| [Prosecutor]: | Started off with the hypotheticals in jury selection that defense counsel gave you. He told you that if a person illegally obtained pills and then flushed them down the toilet, that‘s not tampering. But you‘ve seen the law. That‘s not true. You were also told about another hypothetical where, if a person committed a bank robbery and hid the money in the mattress, that‘s not tampering. You‘ve seen the law. That‘s not true. |
| [Defense counsel]: | Excuse me, Judge. I object to that. That‘s a misstatement— |
At that point, a conference was held at the bench during which the trial court did not explicitly sustain defense counsel‘s objection but instructed both attorneys to “refrain from throwing in statements of some type of actions that are not in this case.” Defense counsel requested and obtained a running objection to the prosecutor “saying anything to indicate that I‘ve done anything improper or untruthful or whatever” because it is striking at his client over the shoulders of counsel.
Argument that attacks the defense attorney—that is, strikes at a defendant over the shoulders of counsel—is improper. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (en banc) (holding that “a prosecutor runs a risk of improperly striking at a defendant over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel‘s character“). However, courts distinguish between improper remarks directed at defense counsel himself and remarks which attack or disparage counsel‘s argument or theory of defense. See Coble v. State, 871 S.W.2d 192, 203-05 (Tex. Crim. App. 1993) (en banc) (approving the prosecutor‘s argument concerning a saying among lawyers that if you have neither the facts or the law on your side, “you argue something ridiculous“); Gorman v. State, 480 S.W.2d 188, 190 (Tex. Crim. App. 1972) (explaining that the prosecutor‘s comment “[d]on‘t let him smoke-screen you, he has smoke-screened you enough” was in response to defense counsel‘s argument attempting to minimize the defendant‘s prior criminal record); Cueva v. State, 339 S.W.3d 839, 882-83 (Tex. App.—Corpus Christi 2011, pet. ref‘d) (finding that the prosecutor‘s argument that “a standard tactic of defense attorneys, when your victim has done something indefensible, [is to] put the victim on trial” was not improper because it “attacked the defense tactic and not the defense attorney himself“). The latter type of remark is permissible. See Brown, 270 S.W.3d at 570.
We conclude that the remarks at issue were not improper. From our examination of the record, it is apparent that the prosecutor was attempting to rebut arguments previously raised by defense counsel that police had not tested the “white powder” contained in the pill bottle and had not taken photographs of the pill bottle. By claiming that such concerns were “presented to [the jury] in a way that‘s not necessarily the truth,” the prosecutor was disputing defense counsel‘s theory of the case; he was not impugning counsel‘s character. Stahmann‘s fifteenth and sixteenth issues are overruled.
4. “Rabbit Trail”
By his seventeenth issue, Stahmann objects to the following remarks:
| [Prosecutor]: | So let‘s start off, from the beginning, what they want you to believe. They want you to believe that he was in shock and that he—this was some sort of act done because he didn‘t know it was going on. But you heard from a trained, 24-year veteran EMT that he was alert and oriented times four. He knew the answers to four critical questions. He might have been in shock. He might have had a head wound to his head, but he knew exactly what was going on. You heard from Mr. Ballard, who spoke with him. Mr. Ballard told you-all he knew exactly what was going on. So the inference that he had some sort of concussion, he was in shock, is just not there in the evidence. But, once again, it‘s going down a rabbit trail that they want you to look at instead of focusing on the facts of the case. |
| [Defense counsel]: | Excuse me, Judge, just one more time. The rabbit—I object to the rabbit trail inference. There‘s a specific case called Mosley vs. State that says that is improper argument. I object to that. |
The trial court sustained defense counsel‘s objection to this argument and instructed the jury to disregard it, but the court overruled counsel‘s motion for mistrial. On appeal, Stahmann argues that these arguments
Again, we disagree. A mistrial is an appropriate remedy only in “extreme circumstances” for a narrow class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). A mistrial halts trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Id. Whether an error requires a mistrial must be determined by the particular facts of the case. Id.
Contrary to defense counsel‘s representation at trial, the Mosley Court did not conclude that references to a “rabbit trail” were necessarily improper; rather, it assumed so for purposes of its analysis. See 983 S.W.2d at 259. Even making that same assumption ourselves, we find that the trial court did not abuse its discretion in denying a mistrial. The “rabbit trail” remark was not so prejudicial as to render further proceedings futile. See Ocon, 284 S.W.3d at 884. We overrule Stahmann‘s seventeenth issue.
III. CONCLUSION
The trial court‘s judgment convicting Stahmann of tampering with physical evidence is reversed. We remand the cause to the trial court with instructions to reform the judgment to reflect a conviction for the offense of attempted tampering with physical evidence, a state-jail felony, see
Publish.
Delivered and filed the 4th day of January, 2018.
DORI CONTRERAS
Justice