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State v. Zuniga

Court of Criminal Appeals of Texas

March 8, 2017

THE STATE OF TEXAS
v.
MARY ZUNIGA, Appellee

         ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW FROM THE 13TH COURT OF APPEALS NUECES COUNTY

          Newell, J., delivered the opinion of the Court, in which Alcala, Richardson, Yeary, Keel and Walker, J.J., joined. Yeary, J. filed a concurring opinion, in which Walker, J., joined. Keller, P.J., filed a dissenting opinion, in which Keasler and Hervey, J.J., joined.

          Newell, J

         When the State charges someone with tampering with physical evidence, is the specific identity of the tampered-with evidence an essential element of the offense? We agree with the State and the court of appeals that it is not. State v. Zuniga, 13-14-00316-CR, 2015 WL 4381064, at *3 (Tex. App.-Corpus Christi July 16, 2015) (mem. op.) (not designated for publication). However, the court of appeals does not appear to have addressed whether the language in the indictment provided adequate notice of the charged conduct, so we remand the case to give them an opportunity to do so.

         Facts

         A police officer pulled Zuniga over after she ran a stop sign in front of her home. During the stop, the officer observed a bottle of medicine in Zuniga's vehicle. When Zuniga was unable to produce a valid prescription for the syrup, the officer arrested her and placed her in the back of his police car. Soon after, the officer observed Zuniga reach into her groin area and pull something out with her hands cupped. The officer then observed Zuniga move her hands towards her mouth and lean her head down as if to swallow "something."[1] The officer took Zuniga to the hospital where medical professionals pumped Appellee's stomach and performed an x-ray. They did not find any illegal substance or a baggie. The State neither tested the results of Appellee's stomach purge for an illegal substance nor requested any testing of her blood.

         The State indicted Zuniga on tampering with physical evidence.[2] This count in the indictment appeared as follows:

(Image Omitted)

         Originally, the State did not allege what Zuniga had attempted to "alter, destroy, or conceal." It merely left a blank space in the indictment. Zuniga filed a "Motion to Quash and Exception to Form of the Indictment." During the hearing on that motion, the State made the handwritten notation-"unknown substance"-on the indictment itself. Zuniga amended her motion to quash in light of the State's amended pleading.

         Zuniga argued that the indictment failed as a matter of both form and substance. Specifically, she complained that the indictment failed to set forth the offense in plain or intelligible language and that the indictment failed to allege two necessary elements of the offense. Finally, she argued that the indictment did not adequately inform her of the act(s) the State intended to rely upon to constitute the crime of tampering with evidence.

         The State responded at the hearing that the State was not required to allege the specific identity of the tampered-with evidence because Zuniga's commission of the offense rendered that evidence unidentitifiable. Then, the State argued that the elements of the offense only required it to prove that Zuniga altered, concealed, or destroyed some "thing." According to the State, whether that "thing" amounted to evidence could be proven through the circumstances of its destruction. In other words, the State appeared to argue that the identity of the tampered-with evidence was an evidentiary matter that did not have to be pleaded in the indictment.

         The trial court saw two problems with the State's case. First, the trial court explained that the State was required to give more notice than simply alleging a "thing." Second, the trial court expressed concern that the State had to prove that Zuniga knew an investigation was pending. After a break in the hearing, the trial court granted Zuniga's motion to quash, stating that "the requirements of 21.02 of the Texas Code of Criminal Procedure had not been met." The trial court further held that the indictment failed to inform the defendant of the acts that the State would rely upon to constitute the crime of tampering.

         The Appeal

         The State appealed the trial court's ruling. The State argued that it was not required to allege the specific identity of the tampered-with evidence in the indictment because it would not be required to prove that fact in order to secure a conviction. According to the State, the "thing" tampered with was not an element of the offense that needed to be pleaded; it was merely an evidentiary matter that the State was not required to allege in the indictment. In other words, the State argued that the specific identity of the tampered-with evidence was not an element of the offense.

         Zuniga replied that simply adding "an unknown substance" as the object of a tampering charge did not provide her with sufficient notice of what she was alleged to have tampered with in violation of the law. She argued that the indictment was insufficient because it failed to provide any description of the "thing" she was alleged to have tampered with. Consequently, Zuniga argued the notice in the indictment did not adequately inform her of the acts the State would rely upon to prove that she had committed the crime because the State had not alleged the evidence she had purportedly destroyed.

         The court of appeals framed the issue in the case as a matter of determining whether an "unknown substance" can be a "thing" under the tampering statute. Zuniga, 2015 WL 4381064 at *2. As the court of appeals phrased it:

We are asked to determine whether an "unknown substance" can be a "thing" under section 37.09 of the penal code such that an indictment alleging the same complies with the constitutional notice requirements and the Texas Code of Criminal Procedure.

Id. The court of appeals properly set out the law regarding Zuniga's right to notice of pending criminal charges. Id. It also correctly observed that generally, when an indictment tracks the language of a penal statute, it will satisfy constitutional and statutory requirements. Id.

         The court of appeals analyzed the elements of the offense set out in the tampering statute and determined that the identity of the physical evidence at issue was not an element of the offense. Zuniga, 2015 WL 4381064 at *2. According to the court of appeals, the "identity of the putative evidence destroyed will be relevant at trial . . . not because it is an element of the offense, but because it is evidence of intent." Id. at *3. Because it was not an element of the offense, the ...


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