Rotenberry v. StateRotenberry v. State
Lead Opinion
OPINION
Appellant Kevin Wayne Rotenberry appeals his conviction for tampering with physical evidence. Because the indictment failed to state an offense, we vacate the trial court’s judgment and dismiss the indictment.
Background
The significant facts are largely uncontested. Appellant’s grandmother, Peggy Dudley, was at one time married to a man named Patrick Cunningham. Cunningham was last seen alive in 1996. Peggy divorced Cunningham in November 1996, claiming that he had abandoned her in August 1996. Peggy died sometime before October 2003.
In 2003, Appellant’s cousin, Dustin Tub-bleville, who was in custody for an unrelated offense, told police that Cunningham had been murdered and was buried in the back yard of Appellant’s home. Tubble-ville said that Appellant had killed Cunningham after Cunningham beat Peggy, carried him in the trunk of his car to his Colleyville home, and with the help of his father, cut up Cunningham’s body and buried it in the back yard. Tubbleville also claimed that the family dog dug up the body, so Appellant and his father buried it deeper.
Based on Tubbleville’s tip, the Texas Rangers began an investigation into Cunningham’s whereabouts that eventually led to the issuance of a warrant to search the premises of Appellant’s home. Various law enforcement agencies assembled to execute the warrant on March 31, 2004.
On the morning of March 31, before police executed the warrant, Colleyville Police Officer David Martz contacted Appellant by phone and asked him to come to the Colleyville police station. Appellant reported to the police station as requested, and Officer Martz interviewed him for about an hour. Officer Martz told Appellant that he was investigating Cunningham’s disappearance and asked Appellant if he knew where Cunningham was. Cunningham told Officer Martz that he did not know where Cunningham was and that he believed Cunningham might have moved to Florida.
After the police read him his rights, Appellant told them that his grandmother had killed Cunningham, who had a history of physically abusing her, in 1996. He said that after his grandmother killed Cunningham, she called Appellant and asked him to help dispose of the body. According to Appellant, his grandmother, who was familiar with the Colleyville home because she lived there at one time, told him to put Cunningham’s body in a disused septic tank in the backyard. Appellant told police that he did as his grandmother asked and put the body in the septic tank.
Based on information provided by Appellant, police located an unused septic tank in the home’s backyard and found skeletal remains, later determined through DNA analysis to be Cunningham’s, inside the tank.
Appellant was initially charged with Cunningham’s murder, but the grand jury indicted him for tampering with or fabricating physical evidence. See
In November 2004, Appellant was rein-dicted for tampering with or fabricating physical evidence by “leaving or hiding” the body in the septic tank on March 30, 2004. In December 2004, the State amended the indictment to allege in a second paragraph that Appellant tampered with or fabricated evidence by telling Officer Martz on March 31, 2004, that he did not know where Cunningham was.
Later in December 2004, Appellant was reindicted again. In five paragraphs with minor variations, this third indictment alleged that Appellant “concealed” Cunningham’s body by telling Officer Martz on March 31, 2004, that he did not know where Cunningham was with the intent to impair the availability of Cunningham’s body as evidence in an investigation.
Finally, Appellant was reindicted a fourth time on February 1, 2006. This last indictment alleged as follows:
[0]n or about March 31, 2004, [Appellant] did then and there, knowing that an investigation into the disappearance of Patrick Cunningham was pending or in progress conceal a thing, to-wit, a human body by telling Detective David Martz that he had not seen Patrick Cunningham since the time that Patrick Cunningham had abandoned [his grandmother] and that he did not know where Patrick Cunningham was located when in fact the defendant had hidden the body of Patrick Cunningham in a septic tank at the residence of Richard Roten-berry with the intent to impair its availability as evidence in the investigation.
In a second paragraph, the indictment made the identical allegation but recited the street address of the home where the body was found.
Appellant filed a motion to quash the final indictment for failing to allege an offense, and the trial court denied the motion. A jury found Appellant guilty as alleged in the indictment and assessed punishment of eight years’ confinement,
Discussion
In his fourth point, Appellant argues that the trial court erred by denying his motion to quash the indictment because the indictment failed to state an offense. Specifically, Appellant contends that he did not “conceal physical evidence” when he told Officer Martz that he did not know where Cunningham was. We agree.
Upon the filing of a timely motion to quash, an indictment must be analyzed to determine whether it states on its face the facts necessary to allege that an offense was committed, to bar a subsequent prosecution for the same offense, and to give the accused notice of the precise offense with which he is charged. De-Vaughn v. State,
Under penal code
The indictment alleged that Appellant concealed Cunningham’s body by telling Officer Martz that he did not know where Cunningham was. It is crucial to identify and distinguish between the two acts of concealment comprising Appellant’s conduct. Appellant concealed physical evidence — Cunningham’s body — when he hid the body in the septic tank. He concealed information — the fact that Cunningham was dead and the location of the body-when he told Officer Martz that he did not know where Cunningham was. The distinction between physical evidence and information is the crux of this case.
The State could not charge Appellant with concealing physical evidence by hiding Cunningham’s body in the septic tank in 1996 because the three-year statute of limitations expired before the indictment was presented to the grand jury in 2004. See Tex.Code CRiM. Proc. Ann. arts. 12.01(6) (Vernon Supp. 2006), 12.04, 12.06 (Vernon 2005). Instead, the State charged Appellant with concealing physical evidence by telling Officer Martz on March 31, 2004 that he did not know where Cunningham was.
The State’s theory of liability is flawed because when Appellant lied to Officer Martz on March 31, 2004, he concealed information, not physical evidence.
Another factor courts may consider when interpreting a statute is laws on the same or similar subject. Tex. Gov’t Code Ann. § 311.023(4). The two sections of the penal code immediately preceding
The State relies on two cases as support for its position that one may conceal information, and therefore commit an offense under
The case before us is distinguishable from King and Sanford. First, in King the question on appeal was the sufficiency of the evidence to show the appellant’s intent to hinder the fugitive’s apprehension; thus, King offers no guidance as to what
Second, in Sanford, the appellant was tried for “harboring or concealing” the fugitive, and the court did not distinguish between “harbor” and “conceal.” Sanford,
Third, and most significant, is the difference between the relevant statutes themselves. In this connection, we must also consider our recent decision in Chase v. State along with Sanford and King. See Chase v. State, Nos. 2-06-00063-CR, 2-06-00064-CR,
When statutory words are not defined, we give words their plain meanings — unless the act clearly shows that they were used in some other sense. Daniels v. State,
To determine in what sense the Legislature used of the word “conceal” in the various statutes, we look to the statute’s captions.
We now compare the definitions of the words “tampering with or fabricating” as used in the caption of the statute relevant to this case and the term “hindering” as used in the other statutes. “Tampering” means “the act of altering a thing; esp., the act of illegally altering a document or product, such as written evidence or a consumer good.” Black’s Law DictionaRY 1494 (8th ed. 2004). “Fabricate” means to invent, forge, or devise falsely. Id. at 627. “Hindering” means to obstruct or delay progress. WebsteR’s Ninth New Collegiate DICTIONARY 571 (1983).
Lying about the presence of a fugitive will “obstruct or delay” the apprehension of the fugitive; thus, in the context of
But lying to police about the location of physical evidence does not “alter, invent, or forge” physical evidence. Thus, “conceal” in the context of “tampering with or fabricating physical evidence” does not fairly encompass the act of lying to police. It would encompass the act of actually hiding the evidence under the second defi
In summary, the word “conceal” must be read in light of the various statutes’ captions. The difference between the captions — “hindering” in the two, “tampering with or fabricating” in the one-compels different interpretations of the word “conceal.” While “concealing” by lying or withholding information is “hindering,” it is not “tampering with or fabricating.” Thus, while the word “conceal” as used in
We hold that the indictment failed as a matter of law to allege an offense under penal code
CAYCE, C.J. filed a dissenting opinion.
Notes
. In Boykin v. State, the court of criminal appeals noted that "[ajlthough Section 311.023 ... invites, but does not require, courts to consider extratextual factors when the statutes in question are not ambiguous, such an invitation should be declined” unless the language of the statute is ambiguous or would lead to an absurd result.
Dissenting Opinion
dissenting.
I respectfully dissent. The majority’s interpretation of
The pertinent language of
(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any ... thing with intent to impair its ... availability as evidence in the investigation or official proceeding.1
In construing a statute, our primary responsibility is to give effect to the legislature’s intent as expressed in the language of the statute.
In Chase v. State, Justice Gardner, writing for another panel of this court, defined the word “conceals” in
The majority acknowledges the same universally recognized definition of “conceals” that we adopted in Chase, but it holds that the word means something different here. According to the majority, the legislature intended that the word be given a much narrower definition when used in
When called upon to interpret a statute, it is not our function as a court to give a statute a meaning that the legislature did not clearly intend simply because we disagree with the operation of the statute as written. Yet, this is what the majority has done here. If the legislature had intended that the definition of “conceals” in
The word “conceals” in
Because the evidence was sufficient to show that appellant withheld information regarding the location of Cunningham’s body with intent to prevent it from being available as evidence in a criminal investigation, the jury properly found him guilty under
For all of these reasons, I dissent.
.
. R.R.E. v. Glenn,
. State v. Hardy,
. Tex Gov’t Code Ann. § 311.011(a) (Vernon 2005).
. Daniels v. State,
. Chase v. State, Nos. 02-06-00063-CR, 02-06-00064-CR,
. Chase,
. See Daniels,
. Chase,