*1 filing Springer his appeal, filing indigence notice of filed an his shortly affidavit later, thereafter; affidavit of indigence. Two months it was not even necessary for the court of appeals Springer notified appeals permit the court of him addi- filing fee due past and his case tional reasonable time correct the de- if the fee paid dismissed was not fect. Accordingly, hearing without argu- days. within ten Springer pay did not the ment, we grant petition review, for fee. appeals The court of dismissed reverse of appeals’ the court judgment, Springer’s appeal failure to pay for the fee and remand to court for further pro- or file an indigence affidavit of “with ceedings with this opinion. consistent See appeal. Tex.R.App. before” the notice of We hold that P. 59.1.
the court of erred in appeals dismissing
Springer’s appeal. recently
We decided two cases sim
ilar to presented. Higgins the one In v.
Randall County Office, the court Sheriff’s appeals appeal dismissed an inmate’s for
failure to file an of indigence affidavit STEWART, Appellant Clinton Shane
“with or appeal, before” notice of al though the. was filed affidavit within the days ten appeals’ the court of order al lowed to correct the error paying the (Tex.2006). 898,
fee. 193 S.W.3d 899-900 PD-0255-07. No. Similarly, Stores, in Hood v. Wal-Mart Court of Criminal Inc., court of dismissed an appeal when filed an affidavit 31, Oct. indigence not “with before” the notice
of appeal ten-day period but within the
paying filing fee.
(Tex.2007). dismissals, those We reversed
noting indigence affidavit is no
longer jurisdictional prohibits that Rule 44.3 dismissal
for formal irregularities defects or in ap
pellate procedure first allowing
appellant a time to reasonable correct the 830; Higgins,
error. Id. at 193 S.W.3d at Thus,
899-900. failure to file an affidavit indigence before” a “with or notice of
appeal will dismissal unless given reasonable time
correct the defect fails to do so. case,
In this Springer’s appeal notice of initially defective because it was unac-
companied by filing fee or an affidavit 20.1(c)(1). indigence required by Rule
However, Springer the defect by corrected
873 the ney. asked whether some of her, to and could be returned “No,” stating that would replied, Weed or against as evidence either be used destroyed. transporting As car, him she asked Lavender back marihuana. to her back He the marihuana returned one “bud” of to Lavender. aas confi-
Lavender did not work out informant, and decided to dential the State this, learning appel- prosecute Upon her. discrepancy between lant realized originally confiscated and what what and light, remained could come he told happened. what had Weed conduct, appellant was As a result of his tampering physical convicted ap- The indictment dence. did, pellant “knowing that an offense has to-wit, committed, Keel, Austin, Terry for appellant. Lavender, alter, Roxanne Kerrville, D.A., Curry, Bruce E. Mat- to-wit, destroy, thing, and mari- conceal Paul, Austin, Attorney, thew State’s for huana, with intent to state. any subsequent investiga- proceeding tion or an official related to KELLER, P.J., delivered appeal, appellant chal- said offense.” On MEYERS, HERVEY, sufficiency of the evidence lenged legal HOLCOMB, JJ„ COCHRAN, joined. conviction, contending, to support did not intend among things, other
Appellant was a officer who pulled over Roxanne Lavender for a traffic viola- affirmed, ap- search, appellant After a tion. consent pellant “knew evidentiary value of possessed ap- discovered that Lavender be lost the ‘bud’ of marihuana would proximately half an ounce of returning it to Lavender.”1 consisting baggie. in a several buds training, Having no formal narcotics tamper- A commits offense if, to take her the station for “knowing lant decided that an with evidence ing questioning to determine whether she proceeding pend- or official alters, destroys, could assist confidential he ... progress, or ing record, Terry ap- thing informant. any Detective Weed document conceals with intent verity, legibility, pellant agreed interviewed her. Lavender officers, investiga- to or assist the and Weed as evidence 2 county “Intent” and attor- tion or official discuss situation State, (Tex. 37.09(a)(l)(emphasis add- Stewart Tex. Pen.Code felony. ed). third-degree is a This offense 2007)(emphasis App.-San Antonio 37.09(c). “knowledge” are different culpable nothing two mean At wrong. mental states. The least, with evi- the very to have commit- requires dence statute intent as to a par- ted the B Class misdemeanor offense *3 result, ticular namely, impairing a thing’s delivery of marihuana.6 But that not “A person as evidence. acts the offense he was with. intent, intentionally, or with with respect judgments We reverse the of the courts ... to a result of his conduct when it is his below, judgment and we render a ac- of objective conscious desire ... cause quittal legally on the of basis By the result.”3 “A person contrast: acts evidence. knowingly, knowledge, or with with re- to a spect result of his conduct when he is WOMACK, J., filed a dissenting opinion reasonably aware his conduct is cer- PRICE, JOHNSON, in which tain to cause the result.”4 KEASLER, JJ., joined. It is not enough appellant knew that his action would the availabili- WOMACK, J., dissenting filed a ty evidence. He must PRICE, JOHNSON, have availability. intended to KEASLER, JJ., joined. is, That impairing the marihuana’s avail- appellant The arrested Roxanne Laven- ability as have evidence must been der and seized her marihuana. He objective lant’s conscious or desire. The prosecutor to discuss with the whether in erred analyzing the prosecuted. Lavender should be It was sufficiency of the for the culpable evidence clear that on the discussion would center state knowledge mental when the stat- Lavender’s future assistance as an infor- proscribes ute higher culpable mental mant. appellant Lavender asked the state intent. give certainly the marihuana back. That Moreover, to be absurd, would only have been since the appellant insufficient to show that incentive for to assist had the objective conscious or desire to was to prosecution avoid the which impair the of the marihuana as marihuana The appellant was evidence. marihuana bud agree appellant some of the not category would have “a described as bud.” For offense,5 marihuana this, of was convicted certainly Lavender, convict enough to evidence. if the State was in pursuing interested Indeed, appellant’s conduct The issue is one of contested intent. statute, appears to have motivated The relevant 37.09(a)(1) escape prose- Code, belief Lavender would Section of the Penal informant, cution becoming proof an and as a had “intent result, quantity the entire bud’s] marihuana availabili- [the destroyed anyway. ty investigation That evidence in the or offi- 6.03(a)(emphasis § 3. Tex. Pen.Code of marihuana amount of two less). ounces or 6.03(b). § Safety 6. Tex. Health & Code Safety 481.120(b)(l)(one-fourth de- 5. Tex. Health & ounce or Code less remuneration). 481.121(b)(l)(proscribing punishment receiving livered cial The found that
did. jury’s Did the DURGAN, Appellant Nakeesha finding? divided the parts: into two keeping
were to be available as evidence No. PD-1069-06. an prosecution Laven- *4 der, and the that could do Court Criminal with as she wished and which would not be Nov. 2007. in- available precisely may tended that result. He also consequences have intended other of that
result, examples imag- of which one could currying
ine: or sug- favor with Lavender
gesting assistance (perhaps
future would be rewarded evidence). gifts of But
similar contraband impossible
it deny seems intent
began making the bud of marihuana
unavailable evidence. This should be analysis. end opinion says that
The Court’s “the
dence be the]
show intent because [that
marihuana bud would not have offense,
the [punishment] category of the certain- Ante,
ly enough convict Lavender....” But require,
at the statute find, required were not required
such an intent. The intent
only that made unavail- be
able, clearly proved. which was required culpa- onto the grafting
Court’s
bility a punishment category is not
change requires.
anything the statute could com-
statute have said that destroys portion no offense if he
mits of a falls between the limits doesn’t,
punishment category. But it. authority
this has no to amend