                                         NO. 07-11-0069-CR

                                   IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL C

                                           AUGUST 7, 2012

                               ______________________________


                               GREGORY THORNTON, APPELLANT

                                                    V.

                                THE STATE OF TEXAS, APPELLEE


                             _________________________________

                 FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

                 NO. 2008-419,888; HONORABLE JIM BOB DARNELL, JUDGE

                               _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                                OPINION


           Following a plea of not guilty, Appellant, Gregory Thornton, was convicted by a

jury of tampering with evidence.1 He pled not true to two enhancement paragraphs and

was sentenced to forty-five years confinement. By two issues, Appellant questions

whether (1) the evidence is sufficient to support a conviction for tampering with

evidence when the "evidentiary value" of an item of drug paraphernalia, to-wit: a glass

1
    Tex. Penal Code Ann. § 37.09(d)(1) (West Supp. 2011).
"crack pipe" was not destroyed or altered and the pipe was never concealed from the

officer that instigated the encounter; and whether (2) he was entitled to a jury instruction

on attempt after the arresting officer testified that he "tried" to tamper with the evidence.

We reverse and render a judgment of acquittal.


                                        Factual Background


        On the morning of April 11, 2008, while on burglary patrol in an unmarked car

and dressed in plain clothes, Officers Jordan Roberts and Nathan Meil noticed

Appellant and a female walking in the street where an adjacent sidewalk was provided,

a violation of section 552.006 of the Texas Transportation Code.2 The officers decided

to stop the individuals and issue a citation for the violation. They pulled up to them,

exited their vehicle, displayed their guns and badges and ordered them to stop.3

According to Roberts, he observed Appellant reach inside a pocket and drop an object

before he walked towards him and Meil.                   After securing the individuals, Roberts

escorted Meil to the location of the dropped object where he retrieved a broken glass

crack pipe and a brillo pad. A female officer was called to search the female suspect.

An intact crack pipe was found in her pocket.


        Appellant and his female companion were both charged with possession of drug

paraphernalia, a Class C misdemeanor.4 By the indictment in this cause, Appellant was

also charged with the third degree felony offense of tampering with evidence. Following

2
 Section 552.006(a) provides that a pedestrian may not walk along and on a roadway if an adjacent
sidewalk is provided and is accessible to the pedestrian.
3
 Roberts testified that he and Meil were within twenty feet of Appellant when they identified themselves as
police officers.
4
Tex. Health & Safety Code Ann. § 481.125(a) and (c) (West 2010).

                                                    2
a plea of not guilty, a jury found Appellant guilty and the trial court assessed his

sentence at forty-five years confinement.5


        By his first issue, Appellant maintains the evidence is insufficient to support his

conviction for tampering with evidence, as alleged in the indictment. We agree.


                                Sufficiency Standard of Review


        The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Brooks v. State, 323 S.W.3d 893,

912 (Tex.Crim.App. 2010). Under that standard, in assessing the sufficiency of the

evidence to support a criminal conviction, this Court considers all the evidence in the

light most favorable to the verdict and determines whether, based on that evidence and

reasonable inferences to be drawn therefrom, a rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S.

at 319; Brooks, 323 S.W.3d at 912. We measure the legal sufficiency of the evidence

by the elements of the offense as defined by a hypothetically correct jury charge. Malik

v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). In our review, we must evaluate

all of the evidence in the record, both direct and circumstantial, whether admissible or

inadmissible.     Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert.

denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).



5
 The range of punishment applicable to this offense was enhanced by four prior felony offenses alleged in
the indictment. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2011).

                                                   3
                                               Analysis


        A person commits the offense of tampering with evidence if knowing that an

offense has been committed, he alters, destroys, 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(d)(1) (West Supp 2011). In this case, the indictment alleges that

Appellant "intentionally and knowingly conceal[ed] physical evidence, to-wit: glass pipe

with intent to impair the availability of glass pipe as evidence in a subsequent

investigation related to the said offense . . . ." He was not charged with altering or

destroying the pipe.


        "Conceal" is not defined by the statute nor elsewhere in the Penal Code.

However, courts have held it means to hide, to remove from sight or notice; to keep

from discovery or observation.           See Rotenberry v. State, 245 S.W.3d 583, 588-89

(Tex.App.--Fort Worth 2007, pet. ref'd); Hollingsworth v. State, 15 S.W.3d 586, 595

(Tex.App.--Austin 2000, no pet.). 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, 2009 Tex. App. LEXIS 7121, at *6 (Tex.App.--Amarillo Sept. 9, 2009,

no pet.) (not designated for publication). In the context of this offense, the actio malum

prohibitum of concealment is the affirmative act of doing something with the intent of

making an item of evidence unavailable in a subsequent investigation or prosecution.6


6
 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, 978 S.W.2d 584,
587 (Tex.Crim.App. 1998) (quoting BLACK'S LAW DICTIONARY, ABRIDGED, 494 (5th ed. 1983).

                                                    4
        Relying on Hollingsworth, 15 S.W.3d at 594-95,7 Appellant maintains that by

reaching in his pocket and removing the glass pipe, he did not affirmatively act to

conceal evidence; rather, he merely dispossessed himself of the evidence, thereby

actually revealing it to Officer Roberts. In response, the State urges that Appellant's

"palming" of the pipe to remove it from his pocket constituted concealment.                              We

disagree with the State.


        In 2006, the Dallas Court of Appeals addressed the issue of concealment in

Blanton v. State, Nos. 05-05-01060-CR and 05-05-01061-CR, 2006 Tex. App. LEXIS

6367,(Tex.App.--Dallas July 21, 2006, pet. ref'd) (not designated for publication). There,

the defendant was stopped for a traffic violation and before stopping, he dropped two

plastic baggies from his car window. The baggies were later retrieved and although

some of the contents had spilled onto the street, a measurable amount of crack cocaine

remained in them. He was convicted of possession of cocaine and tampering with

evidence. Regarding the tampering conviction, he argued on appeal that the State

failed to prove he "concealed" the cocaine because he had in fact exposed it to the

officer's view.8 The Dallas Court of Appeals agreed that Blanton had not concealed the

cocaine but nevertheless affirmed his conviction for tampering with evidence based on

7
 In Hollingsworth, an officer was dispatched to a knife fight. He observed the defendant, whom he
believed was a suspect, walking away from his patrol car at a fast pace. As the defendant ducked behind
a dumpster, the officer observed him make a motion with his tongue in his mouth. A backup officer
arrived and observed the defendant spit out what appeared to be crack cocaine. The defendant was
found guilty of possession of cocaine and tampering with evidence. He challenged the tampering
conviction by arguing he had not concealed any evidence. The Court found the evidence insufficient to
support the conviction for tampering with evidence because, by spitting out the cocaine, which the backup
officer testified he observed, the defendant exposed it to the officer's view rather than affirmatively acting
to conceal the evidence. 15 S.W.3d at 595.
8
 Blanton also argued the State failed to prove he destroyed or altered the cocaine. However, those
arguments are not relevant here because, unlike the charges in Blanton, Appellant was not charged with
destroying or altering the pipe in question.


                                                      5
having "altered" the cocaine because the baggies had ripped and their contents had

spilled onto the roadway. Id. at *8-9.


       Here, Officer Roberts repeatedly confirmed during cross-examination that the

object Appellant removed from his pocket, i.e., the glass crack pipe, was never

concealed from him because it never left his sight.9 Appellant never affirmatively acted

to make the crack pipe unavailable in a subsequent investigation or prosecution. He did

not throw it, bury it, cover it, hide it, place it out of sight, or otherwise conceal it. He

merely dispossessed himself of it, leaving it in plain-view. As in Blanton where the act

of dropping baggies out of a car window did not result in concealment, Appellant did not

conceal the glass crack pipe by dropping it and thus ultimately revealing it to Officer

Roberts.


       The State urges that Officer Roberts's awareness of the glass pipe should not be

imputed to Officer Meil's unawareness.               Appellant, again relying on Hollingsworth,

argues that it implicitly held that an officer's awareness of evidence is imputed to other

officers.   Although neither party cites to any authority involving tampering cases in

support of their respective arguments, we follow the logic of Hollingsworth in which at

least one of the officers on the scene, as is the case here, was aware of the presence of


9
Officer Roberts testified as follows during cross-examination:

       Q. From the moment he took the pipe out of his hand, to the moment it hit the ground, to the
       moment you picked it up, did you ever lose sight of it?
       A. No.
                                                  ***
       Q. And correct me if I'm wrong, the pipe was never out of your vision; is that right?
       A. Yes, sir.
                                                  ***
       Q. Essentially, Officer Roberts, what I'm hearing from you is that the pipe was never out of your
       sight; is that correct?
       A. Yes, sir.

                                                    6
the item alleged to have been concealed. Cf. Holloway v .State, 780 S.W.2d 787, 796

(Tex.Crim.App. 1989) (regarding the Sixth Amendment, knowledge is imputed from one

state actor to another).


       We conclude based on the plain and ordinary meaning of "conceal" and on the

evidence and reasonable inferences to be drawn therefrom that no rational trier of fact

could have found that Appellant "concealed" the pipe as alleged in the indictment.

Issue one is sustained.       Our disposition of Appellant's first issue pretermits

consideration of the second issue. Tex. R. App. P. 47.1.


                                     Conclusion


       Having found the evidence is insufficient to sustain Appellant's conviction for

tampering with evidence, we reverse the trial court's judgment and render a judgment of

acquittal.



                                               Patrick A. Pirtle
                                                   Justice


Publish.




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